State v. Hogg

SUPREME COURT CASES

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State v. Hogg

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-6454

Case Date: 12/15/2011

Plaintiff: State

Defendant: Hogg

Preview:[Cite as State v. Hogg, 2011-Ohio-6454.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,                                                                              :
Plaintiff-Appellee,                                                                         :
                                                                                                No. 11AP-50
v.                                                                                          :   (C.P.C. No. 10CR-4244)
Rodney M. Hogg,                                                                             :   (REGULAR CALENDAR)
Defendant-Appellant.                                                                        :
D  E  C  I  S  I  O  N
Rendered on December 15, 2011
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
appellee.
Watson  Law  Group,  LLP,  David  C.  Watson  and  Titus  G.
Donnell, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1}   Defendant-appellant, Rodney M. Hogg, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty of aggravated murder in
violation of R.C. 2903.01. Because (1) sufficient evidence and the manifest weight of the
evidence support defendant's conviction,  (2) the trial court did not err in applying the
Castle Doctrine, and (3) the trial court's exclusion of evidence was harmless, we affirm.

No. 11AP-50                                                                                    2
I. Facts and Procedural History
{¶2}   By indictment filed July 21, 2010, defendant was charged with one count of
aggravated murder and one count of murder, both unclassified felonies, arising out of an
incident that occurred on July 12, 2010 at defendant's home.
{¶3}   According to the state's evidence, defendant and his girlfriend lived on East
26th Avenue in Columbus, Ohio at the time of the incident. Around 5:15 p.m. on July 12,
defendant's girlfriend was getting ready to go to a class at Columbus State Community
College; at the same time, defendant was walking down the street. Defendant's girlfriend
drove around the block to pick him up and, when she told him she was about to go to
school, he stated he wanted to go with her so he could re-enroll in the college. She circled
back to their house so defendant could lock the front door.
{¶4}   Defendant's girlfriend sat in the car and waited as defendant went into the
house. She saw the victim walk up to the couple's house and knock on the front door, but
then put her head down, as the victim frequently went to the couple's house. When she
looked up, her front door was halfway open, "like [defendant] wanted [the victim] out of
the house." (Tr. 93.) She then heard yelling. The victim signaled for her to come into the
house where he told her that defendant had "been trying to get with [his] baby's mom and
all of the other girls on the block." (Tr. 96.)
{¶5}   The victim's attention then focused on defendant's girlfriend; he started
grabbing  her,  "like  lustfully,"  and  telling  her  he  wanted  to  get  with  her.         (Tr.   99.)
Defendant's girlfriend told the victim he needed to leave, but the victim refused to do so.
She stated the victim "smelled of alcohol," was maybe two feet from the door, and could
have left the residence without having to pass either defendant or his girlfriend.

No. 11AP-50                                                                                     3
{¶6}   Defendant  then  grabbed  his  girlfriend  and  told  the  victim  she  was  his
"baby's mom" and the victim "need[ed] to leave." (Tr. 99.) The victim threw a punch aimed
toward defendant, and defendant stabbed the victim in the neck. Defendant's girlfriend
never saw defendant get a knife and did not see him with a knife, but she stated the knife
defendant used was a steak knife from the couple's kitchen. The victim then tackled
defendant, and the girlfriend ran outside where she called 911. The knife wound severed
part of the victim's subclavian vein and artery, a portion of the ascending aorta, and the
upper lobe of the left lung, as well as nicking the third thoracic vertebra and part of the
right atrium. The victim died as a result of the injury.
{¶7}   According  to  defendant's  testimony,  he  went  to  his  neighbor  Latanya
Locke's  house  on  the morning of  July  12  to  see  if  her son  was  home.  Locke  told
defendant her son was with the victim, so defendant walked down the block to the victim's
house. When defendant arrived, the victim and Locke's son were sitting on the victim's
back porch, drinking vodka and talking. Defendant stayed at the victim's house most of
the day drinking with them. Later in the day, the victim accused defendant of "trying to talk
to  [his] baby's mom." (Tr.  195.) Defendant denied the accusation, but the victim "had
moved his daughter to cause harm" to defendant.  (Tr.  195.) At that point, defendant
decided to leave the victim's house.
{¶8}   Defendant first went to Locke's home and told her the victim "was tripping,
talking about"  how defendant  was  "trying to  mess  with  his  baby's  mom."  (Tr.  198.)
Defendant then left Locke's house, returned home, and went out again. He called his
girlfriend and told her he wanted to go to school with her to see about re-enrolling in
college. She picked him up, and they went back to the house so he could freshen up.

No. 11AP-50                                                                                      4
Defendant entered the residence, locked the door behind him, but then answered the
door when the victim knocked. Defendant testified that once the victim was in the house,
he and his girlfriend repeatedly asked the victim to leave the residence; the victim refused
to leave.
{¶9}   Defendant stated he was "very afraid" and "appalled that [the victim] came
to [his] house." (Tr. 207.) According to defendant's evidence, defendant was 135 pounds
and five feet seven or eight inches tall, while the victim was 245 pounds and six feet one
and a half inches in height. Defendant testified that while the victim and his girlfriend were
in the front room, he went to the kitchen and retrieved the knife. When he returned,
defendant pulled his girlfriend back toward him. The victim then cocked back with his right
fist, exposing his neck; defendant moved his girlfriend out of the way, pulled out the knife,
and stabbed the victim in the neck. Defendant stated the victim began to choke him, and
the two wrestled on the ground until the police arrived.
{¶10}  On the day scheduled for trial, defendant voluntarily waived his right to a
jury trial, and the matter was tried to the court. At the conclusion of the trial, the court
found defendant guilty of both counts charged in the indictment. Following trial, defendant
filed a Crim.R. 33 motion for a new trial, contending he was entitled to a new trial because
not only did the state fail to present sufficient evidence to support the verdict, but the
verdict was contrary to law because the court failed to recognize the portion of the Castle
Doctrine set forth in R.C. 2901.05. The court overruled the motion, noting the referenced
portion of the Castle Doctrine did not apply to the facts of the case. At a sentencing
hearing held on December 17,  2010, the court merged the charges for purposes of

No. 11AP-50                                                                                   5
sentencing  and  sentenced  defendant  to  a  prison  term  of                                20  years  to  life  on  the
aggravated murder charge.
II. Assignments of Error
{¶11}  Defendant appeals, assigning the following errors:
I. THE  TRIAL  COURT  ERROR                                                                   [sic]  BY  MISINTER-
PRETING   AND   ACCORDINGLY   MISAPPLIED   THE
CASTLE   DOCTRINE   CODIFIED  IN   R.C.                                                       2901.05   &
2901.09.
II. DEFENDANT/APPELLANT'S  CONVICTION  WAS  NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT EXCLUDED MS. LOCKE'S TESTIMONY.
IV. THE  CONVICTION  IN  THE  INSTANT  MATTER  WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. First, Second, and Fourth Assignments of Error - Sufficiency & Manifest Weight
of the Evidence
{¶12}  Defendant's first, second, and fourth assignments of error are interrelated
and collectively assert that neither sufficient evidence nor the manifest weight of the
evidence supports the trial court's judgment, because the trial court erred in applying the
Castle Doctrine to the facts of the case, and the state failed to establish that defendant
acted with prior calculation and design in stabbing the victim.
A. Sufficiency of the Evidence
{¶13}  Whether evidence is legally sufficient to sustain a verdict is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. Sufficiency is a test of
adequacy. Id. The evidence is construed in the light most favorable to the prosecution to
determine whether a rational trier of fact could have found the essential elements of the

No. 11AP-50                                                                                     6
offense proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus; State v. Conley (Dec. 16, 1993), 10th Dist. No. 93AP-
387. When reviewing the sufficiency of the evidence the court does not weigh the
credibility of the witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,
¶79.
{¶14}  Similarly, to the extent defendant asserts the trial court erred in denying his
Crim.R.                                                                                         33(A)(4)  motion  for  a  new  trial,  we  "apply  the  sufficiency-of-the-evidence
standard to review the trial court's decision to deny appellant's Crim.R. 33(A)(4) motion
claiming that the * * * verdict is not supported by the evidence." State v. Brown, 10th Dist.
No. 10AP-1204, 2011-Ohio-4766, ¶27; Crim.R. 33(A)(4) (providing that a new trial may be
granted upon motion of the defendant if the verdict is not sustained by sufficient evidence
or is contrary to law).
1. The Castle Doctrine
{¶15}  Defendant contends the trial court erred in denying his motion for a new trial
because he was entitled to the presumption of self-defense found in R.C. 2901.05(B)(1).
Defendant's challenge  to  the  sufficiency of  the evidence  insofar as  it  invokes  self-
defense and the Castle Doctrine is inappropriate. Under Ohio law, self-defense is an
affirmative defense. State v. Calderon, 10th Dist. No. 05AP-1151, 2007-Ohio-377, ¶30,
quoting State v. Williford (1990), 49 Ohio St.3d 247, 249, citing State v. Martin (1986),
21 Ohio St.3d. 91, affirmed (1987), 480 U.S. 228, 107 S.Ct. 1098, rehearing denied,
481 U.S. 1024, 107 S.Ct. 1913. The "due process 'sufficient evidence' guarantee does
not implicate affirmative defenses, because proof supportive of an affirmative defense
cannot detract from proof beyond a reasonable doubt that the accused had committed

No. 11AP-50                                                                                   7
the requisite elements of the crime." State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-
160, ¶37, quoting Caldwell v. Russell (C.A.6, 1999), 181 F.3d 731, 740, abrogated on
other grounds by the Antiterrorism and Effective Death Penalty Act, Section 2261 et
seq., Title  28, U.S. Code  (see Mackey v. Dutton  (C.A.6,  2000),  217 F.3d  399,  406.
Defendant's self-defense contentions thus are addressed in our analysis of the manifest
weight of the evidence.
2. Mens Rea of Aggravated Murder
{¶16}  Defendant also contends the state failed to offer evidence showing that
defendant acted with the requisite prior calculation and design. R.C. 2903.01(A) defines
the offense of aggravated murder, providing that "[n]o person shall purposely, and with
prior calculation and design, cause the death of another." The term "prior calculation and
design"  is  not  statutorily  defined  but  "is  generally  understood  to  encompass  the
calculated decision to kill." State v. Jackson (Jan. 20, 2000), 8th Dist. No. 75354, citing
State v. Robbins (1979), 58 Ohio St.2d 74, paragraph one of the syllabus. No bright line
test determines whether prior calculation and design are present. "Instead, each case
turns on the particular facts and evidence presented at trial." State v. Taylor, 78 Ohio
St.3d 15, 20, 1997-Ohio-243, cert. denied, 552 U.S. 851, 118 S.Ct. 143.
{¶17}  Neither the degree of care nor the length of time the offender takes to
ponder the crime beforehand is critical in itself. State v. Awkal, 76 Ohio St.3d 324, 330,
1996-Ohio-395 (citations omitted). While momentary deliberation is insufficient, a time
span as short as two or three minutes can be sufficient for prior calculation and design.
Taylor at 22. Where the trial evidence reveals sufficient time and opportunity to plan an
act  of  homicide,  and  the  circumstances  surrounding  the  homicide  show a  scheme

No. 11AP-50                                                                                       8
designed to implement the calculated decision to kill, a trier of fact's finding of prior
calculation and design is justified. State v. Cotton (1978), 56 Ohio St.2d 8, paragraph
three of the syllabus.
{¶18}  Defendant contends the evidence was legally insufficient to establish prior
calculation and design because defendant armed himself to expel an intruder from his
home, only used the weapon when the intruder attacked him, and was not trying to fatally
wound the intruder. Defendant's argument draws on his self-defense defense and so is
not helpful in analyzing the sufficiency of the evidence. Hancock.
{¶19}  The  state,  in  addressing  defendant's  argument,  relies  on  defendant's
evidence that he left the confrontation in the front room, went to the kitchen, retrieved the
knife, came back to the confrontation in the front room, and ultimately stabbed the victim
causing his death. On such facts, the court could infer the requisite intent to kill, given the
circumstances, the weapon, and the nature of the wounds the victim suffered. See R.C.
2901.22(A); State v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168 (citations omitted)
(stating "persons are presumed to have intended the natural, reasonable and probable
consequences of their voluntary acts"); State v. Edwards (1985), 26 Ohio App.3d 199,
200  (concluding  that,  despite  defendant's  denying  any  intention  to  kill  the  victim,
defendant's entering his house, retrieving a banister railing and hitting the victim allowed
the jury to conclude the defendant had the requisite intent to kill, "given the size of the
instrument and the force with which the victim was struck").
{¶20}  The facts similarly support a finding of prior calculation and design in that
defendant left the affray, retrieved a weapon, and used it to kill the victim. Cf. State v.
Norman (Dec. 23, 1999), 10th Dist. No. 99AP-398, appeal not allowed (2000), 88 Ohio

No. 11AP-50                                                                                                                  9
St.3d                                                                                           1496,  citing  Robbins  at   79  (deciding  that  where  the  defendant  left  as  two
individuals argued, went upstairs, and retrieved a gun, the defendant's "withdrawal from
the  confrontation  to  obtain  a  weapon  was  a  sufficient  lapse  of  time  and  provided
sufficient opportunity to allow appellant to form a plan to carry out the purpose to kill");
State  v.  Martin                                                                               (Apr.                        19,                                                         2001),  10th  Dist.  No.   00AP-836  (determining  the  record
contained  sufficient  evidence  of  prior  calculation  and  design  where  the  defendant,
following an argument with the victim in a bedroom came out of the bedroom, went to
the kitchen area, returned to the bedroom, and emerged from the bedroom having
stabbed  the  victim,  since  by  leaving  the  bedroom,  the  defendant  had  a  sufficient
"cooling off" period in which she could plan her actions).
{¶21}  The state, however, did not present all the evidence on which it now relies
to support the sufficiency of the evidence. See State v. Cross-Necas, 11th Dist. No. 2010-
P-0042, 2011-Ohio-2590, ¶32, citing State v. Lewis, 11th Dist. No. 2009-L-138, 2010-
Ohio-4288, quoting State v. March (July 16, 1999), 11th Dist. No. 98-L-065 (stating "the
focus of a 'sufficiency analysis is solely upon the state's evidence' "). Rather, its core
evidence was that the victim entered defendant's residence, and the situation escalated.
Defendant grabbed his girlfriend and told the victim he needed to leave. As the victim
began to throw a punch aimed toward defendant, defendant stabbed the victim in the
neck with a steak knife. In itself, such evidence arguably is insufficient to prove prior
calculation and design.
{¶22}  Although the state did not present direct evidence that defendant left the
fight, went to the kitchen and returned with a knife, defendant's girlfriend testified that,
although she did not see defendant retrieve the knife, it belonged to the couple, was kept

No. 11AP-50                                                                                      10
in their kitchen, and was "normally always there." (Tr. 104.) She further stated she never
before had seen defendant carry the knife. The additional evidence was sufficient to allow
the trial court to conclude defendant retrieved the knife from the kitchen as part of a plan
to use it against the victim. Accordingly, the state presented sufficient evidence to support
the mental element of aggravated murder.
B. Manifest Weight of the Evidence
{¶23}  Sufficiency of the evidence and manifest weight of the evidence are distinct
concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When
presented with a manifest weight argument, we engage in a limited weighing of evidence
to determine whether sufficient competent, credible evidence permits reasonable minds
to find guilt beyond a reasonable doubt. Conley. Thompkins at 387 (noting that "[w]hen a
court of appeals reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and
disagrees with the factfinder's resolution of the conflicting testimony").
{¶24}  In cases involving a bench trial, "the trial court assumes the fact-finding
function of the jury." Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, ¶16. To
warrant reversal from a bench trial under a manifest weight of the evidence claim, a
reviewing court must "review the entire record, weigh the evidence and all reasonable
inferences,  consider  the  credibility  of  witnesses  and  determine  whether  in  resolving
conflicts in evidence, the trial court clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered." Id.,
citing Thompkins at 387.

No. 11AP-50                                                                                     11
{¶25}  Determinations of credibility and weight of the testimony remain within the
province of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of
the syllabus. The jury, or the court in a bench trial, may take note of any inconsistencies
and resolve them accordingly, "believ[ing] all, part or none of a witness's testimony." State
v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill (1964), 176
Ohio St. 61, 67. "The power to reverse on 'manifest weight' grounds should only be used
in  exceptional  circumstances,  when  'the  evidence  weighs  heavily  against  the
conviction.' " State v. Banks,  10th Dist. No.  09AP-13,  2009-Ohio-4383,  ¶14, quoting
Thompkins at 387.
1. The Castle Doctrine
{¶26}  Defendant  asserts  his  aggravated  murder  conviction  is  against  the
manifest weight of the evidence because a reasonable trier of fact only could conclude
that defendant not only was lawfully in his home but the victim was unlawfully in it
because he obtained entry through deception. With that premise, defendant asserts he
was entitled to the presumption that he acted in self-defense when he attempted to
expel the victim from his home.
{¶27}  Self-defense is an affirmative defense, and the accused has the burden to
prove it by a preponderance of the evidence. R.C. 2901.05(A); State v. Smith, 10th Dist.
No. 04AP-189, 2004-Ohio-6608, ¶16. To establish self-defense through the use of deadly
force a defendant must prove (1) he was not at fault in creating the situation giving rise to
the affray, (2) he 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 danger was the use of such force,
and (3) he must not have violated any duty to retreat or avoid the danger. Robbins at

No. 11AP-50                                                                                       12
paragraph two of the syllabus. A defendant may only use as much force as is reasonably
necessary to repel the attack. State v. Harrison, 10th Dist. No. 06AP-827, 2007-Ohio-
2872, ¶25, citing State v. Jackson (1986), 22 Ohio St.3d 281, cert. denied (1987), 480
U.S.  917,  107 S.Ct.  1370. The elements of self-defense are cumulative, so "[i]f the
defendant fails to prove any one of these elements * * * he has failed to demonstrate that
he acted in self-defense." (Emphasis sic.) Jackson at 284.
{¶28}  Given the three-part test, "a person may not kill in self-defense if he has
available reasonable means of retreat from the confrontation." Williford at  250, citing
Jackson at 283-84. The duty to retreat "derives from the common-law rule that the right to
kill in self-defense may be exercised only if the person assaulted attempted to 'retreat to
the wall' whenever possible." State v. Thomas, 77 Ohio St.3d 323, 326-27, 1997-Ohio-
269.
{¶29}  By contrast, a person attacked in his or her own home has no duty to retreat
before using force in self-defense. R.C.  2901.09(B); Williford at  250, quoting State v.
Peacock  (1883),  40 Ohio St.  333,  334  (stating that " '[w]here one is assaulted in his
home, or the home itself is attacked, he may use such means as are necessary to repel
the assailant from the house, or to prevent his forcible entry, or material injury to his
home, even to the taking of life' "). (Emphasis sic.) Commonly referred to as the Castle
Doctrine, this exception to the duty to retreat "derives from the doctrine that one's home is
one's castle and one has the right to protect it and those within it from intrusion or attack."
Thomas at 327.
{¶30}  In  2008, the Ohio General Assembly further expanded the reach of the
Castle Doctrine through Senate Bill 184, creating a presumption that a person acts in self-

No. 11AP-50                                                                                    13
defense "when using defensive force that is intended or likely to cause death or great
bodily harm to another if the person against whom the defensive force is used * * * has
unlawfully and without privilege to do so entered the residence  * *  * occupied by the
person using the defensive force." R.C. 2901.05(B)(1). The presumption of self-defense
may be rebutted if the state establishes by a preponderance of the evidence that the
person against whom the defensive force was used had a right to be in, or was a lawful
resident of, the residence. R.C. 2901.05(B)(1), (3). Thus, under S.B. No. 184, "a person is
presumed to have acted in self-defense" and may use deadly force "when attempting to
expel or expelling another from their home who is unlawfully present. * * * There is also
no duty to retreat inside one's home." State v. Johnson, 8th Dist. No. 92310, 2010-Ohio-
145, ¶18.
{¶31}  The parties here do not dispute that defendant had no duty to retreat before
using force in self-defense, per R.C. 2901.09. Rather, they dispute whether defendant
was entitled to the R.C. 2901.05(B)(1) presumption of self-defense. Defendant asserts
the trial court focused solely on the "no duty to retreat" portion of the Castle Doctrine in
R.C. 2901.09(B) and failed to acknowledge the presumption in R.C. 2901.05(B)(1). The
state  contends  the  trial  court  correctly  considered  both  R.C.                          2901.05(B)(1)  and
2901.09(B), and found the R.C. 2901.05(B)(1) presumption of self-defense inapplicable
because the victim lawfully entered defendant's residence.
{¶32}  The only evidence concerning the victim's entry into the home came from
defendant. Although defendant's girlfriend stated she saw the victim walk up to the house
and knock on the door, "standing to the side of the door," she "put  [her] head down
because  *  *  * it  [was] normal for him to come over."  (Tr.  92-93.) She explained that

No. 11AP-50                                                                                     14
although the victim had never been inside the house, he often came there to ask for
cigarettes.
{¶33}  Defendant testified that when he heard a knock on the door, he looked out
the peephole and did not see anyone. According to defendant, "no trouble is usually
around, so I just opened the door," but when he did, the victim "stepped up on the porch
and forced his way in, * * * pushed the door and * * * pushed me out of the way." (Tr.
203.) Defendant said the victim stood to the side of the steps leading up to the front door
to prevent defendant from seeing him through the peephole.
{¶34}  Although defendant contends the trial court failed to acknowledge R.C.
2901.05(B)(1), defendant's closing argument specifically directed the court's attention to
R.C. 2901.05, informing the court that under the statute "a homeowner who is faced with
an  individual  who  comes  into  their  home  unlawfully  is  given  a  self-defense,  a
presumption." (Tr. 251.) The trial court then expressly addressed the lawfulness of the
victim's entry, stating that "[t]he victim knocked on the door of the defendant and he was
allowed to enter. * * * The defendant would have you believe that the victim knocked on
the door while standing beside the door so as not to be seen through the peephole. I am
not convinced that is true." (Tr. 260.) As the court explained, "The victim went to the front
door, knocked on the door. He was known by defendant and he [was] allowed to enter
defendant's house. In fact, there was testimony that this victim, in fact, went to the
defendant's house often to borrow cigarettes." (Tr. 260.)
{¶35}  The trial court did not believe defendant's testimony. While a witness's
testimony "may not be 'arbitrarily ignored,' a trial court may ignore such testimony if there
are 'some reasons  *  *  * objectively present.' " Coleman v. Hamilton,  12th Dist. No.

No. 11AP-50                                                                                    15
CA2011-03-049, 2011-Ohio-4717, ¶14, quoting State v. Brown (1983), 5 Ohio St.3d 133,
135. The trial court here did not arbitrarily ignore the defendant's testimony regarding the
lawfulness of the victim's entry, but instead explained why it found defendant's testimony
unbelievable. The trial evidence supported the court's  reasoning:  defendant and the
victim were neighbors, had known each other for over a couple of months, spent most of
the day prior to the incident drinking together, and frequently encountered each other in
the victim's knock on defendant's door and request for cigarettes.
{¶36}  Where, as here, the trial court gave reasons to support its decision to
disbelieve defendant's testimony, the court's conclusion that defendant permitted the
victim to enter his house is not against the manifest weight of the evidence. See State v.
Frett  (June  11,  1998), 8th Dist. No.  72812, appeal not allowed,  83 Ohio St.3d  1461
(stating that although "the only evidence of what actually happened in the room was
defendant's testimony that the victim came at him with a knife," the jury, "for a number
of reasons, * * * was entitled to disbelieve defendant's testimony that he shot the victim
in  self-defense").  Because  the  court  found  the  victim  lawfully  entered  defendant's
residence, defendant was not entitled to the R.C.  2901.05(B)(1) presumption of self-
defense. See State v. Madera, 8th Dist. No. 93764, 2010-Ohio-4884, ¶37-39, appeal not
allowed, 127 Ohio St.3d 1548, 2011-Ohio-647 (noting the Castle Doctrine did not apply
where the trier of fact determined the victim was lawfully in defendant's house); Cf. State
v.  Kozlosky,                                                                                  8th  Dist.  No.   95861,  2011-Ohio-4814,  ¶27-29  (concluding  a  defendant
satisfied the elements of self-defense, as altered by the Castle Doctrine, where the victim
entered defendant's "home three times without permission," "ignored all demands to

No. 11AP-50                                                                                              16
leave," and started beating the defendant's female tenant, causing the defendant to shoot
the victim after the victim reached back for his gun).
{¶37}  Moreover, other inconsistencies in defendant's evidence gave the trial court
reason  to  question  his  witnesses'  credibility.  Although  defendant's  girlfriend  testified
defendant stabbed the victim only after the victim took a swing at him, she did not so
advise police on the night of the incident when she provided a handwritten statement
detailing  the  events  of  that  evening.  Defendant  similarly  admitted  that  some  of  his
testimony included information he did not tell police on the night police responded to his
house. Although defendant told police on the night of the incident that his girlfriend was
between him and the victim when he stabbed the victim, defendant testified at trial that he
pushed his girlfriend out of the way before stabbing the victim. Defendant also never told
police in his interview immediately following the incident that the victim was known to
carry  a  large  knife,  but  he  so  testified  at  trial.  Lastly,  although  the  couple  testified
defendant and the victim knocked the chairs and table over in their struggle, one of the
police officers who arrived on the scene stated he threw the table and chairs over in order
to handcuff defendant.
{¶38}  After concluding that defendant allowed the victim to enter the residence,
the trial court found defendant failed to carry his burden of establishing he acted in self-
defense. The court explained that the evidence provided "no factual basis whatsoever in
this case for the defendant to believe, even if mistaken, that he was in danger of death or
great bodily harm by the possible swinging of the fist by the victim toward the defendant.
* * * Therefore, he ha[d] no right to use deadly force as he did in defending himself." (Tr.
268.) The court similarly found defendant used excessive force in pulling out the knife to

No. 11AP-50                                                                                      17
"kill someone who is without question unarmed and incapable of inflicting deadly force or
- death or great bodily harm." (Tr. 268.)
{¶39}  Given the evidence, the trial court did not clearly lose its way and create a
manifest miscarriage of justice. The trial evidence established that the victim swung his
fist at defendant, never actually hitting defendant, and defendant responded by fatally
stabbing the victim. Although defendant testified the victim was known to carry a knife,
defendant presented no evidence that the victim had a knife on the day of the incident.
The trial court's judgment is not against the manifest weight of the evidence. See State v.
Berger, 8th Dist. No. 87603, 2006-Ohio-6583, ¶19, appeal not allowed, 113 Ohio St.3d
1468, 2007-Ohio-1722 (concluding defendant did not have a bona fide belief she was in
danger of death or great bodily harm where "no one else" in the confrontation "had a
weapon"  and  the  others  were  only  engaged  "in  cussing,  hair  pulling,  shoving,  and
punching).
2. Mens Rea for Aggravated Murder
{¶40}  Defendant  alternatively  asserts  his  conviction  for  aggravated  murder  is
against the manifest weight of the evidence because the state failed to establish that
defendant acted with prior calculation and design. Defendant contends he did not act with
the requisite prior calculation and design because he armed himself with the knife in an
attempt to expel an intruder. Although defendant argues he was justified in obtaining the
knife, he does not dispute that he left the group during the confrontation in the front room,
went to the kitchen, obtained the knife, partially concealed the knife in his shorts, and then
used the knife to stab the victim and cause the victim's death. Such facts support the trial
court's finding prior calculation and design on the evidence presented.

No. 11AP-50                                                                                       18
{¶41}  Defendant nonetheless contends he did not intend to kill the victim, but only
meant to strike the victim in the shoulder. The trial court was in the best position to judge
the credibility of defendant, and we will not substitute our judgment for that of the trial
court where, as here, the evidence concerning defendant's actions and the nature of the
injuries support the trial court's conclusion that the defendant acted purposely in causing
the victim's death. The manifest weight of the evidence supports the trial court's resolution
of defendant's self-defense claim and defendant's conviction for aggravated murder.
{¶42}  Defendant's first, second, and fourth assignments of error are overruled.
IV. Third Assignment of Error - Hearsay
{¶43}  Defendant's third assignment of error asserts the trial court erred when it
excluded Locke's testimony as hearsay. A trial court has broad discretion concerning the
admission or exclusion of evidence; in the absence of an abuse of such discretion that
materially  prejudices  a  defendant,  a  reviewing  court  generally  will  not  reverse  an
evidentiary ruling. State v. Issa,  93 Ohio St.3d  49,  64,  2001-Ohio-1290, cert. denied
(2002), 535 U.S. 974, 122 S.Ct. 1449; Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66;
State v. Barnes,  94 Ohio St.3d  21,  23,  2002-Ohio-68  (noting a trial court abused its
discretion when it "acted unreasonably, arbitrarily, or unconscionably").
{¶44}  Defense witness, Latanya Locke, testified the victim stopped at her house
on the day of the incident before going to defendant's house. Locke heard the victim tell
her son "he was going next door, he would be back, he was going to kick [defendant's]
'A.' "                                                                                            (Tr. 185-86.) The court sustained the state's hearsay objection to the statement.
Defendant  contends  on  appeal  that  the  trial  court  erred  in  sustaining  the  objection
because the statement was not offered to prove the truth of the matter asserted but rather

No. 11AP-50                                                                                   19
"was offered to show the decedent's intent and motive" when he went to defendant's
residence, so the statement fits "squarely within the exception found in Ohio R. Evidence
803(3)." (Appellant's brief, 12.)
{¶45}  A  statement  is  inadmissible  hearsay  when  it  is                                  (1)  an  out-of-court
statement and (2) offered to prove the truth of the matter asserted. Evid.R. 801(C) and
802.   Among the listed exceptions to the hearsay rule set out in Evid.R. 803 is Evid.R.
803(3),  providing that "[a]  statement of  the declarant's  then  existing state of  mind,
emotion, sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain and bodily health)," will not be excluded as hearsay. "Under Evid.R. 803(3),
statements of current intent to take future actions are admissible for the inference that
the intended act was performed." State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,
¶99, cert. denied, 549 U.S. 957, 127 S.Ct. 387 (determining the statement, "I got to kill
the present wife and I'll have a lot of money after that," made by an individual hired to
kill  the  defendant's  wife  "was  admissible  under  Evid.R.                                803(3)  to  prove  that   [the
individual] later acted in conformity with that intention").
{¶46}  Here, the victim's statement arguably was a statement of the victim's then
current intention to take a future action and thus admissible under Evid.R. 803(3). Even
if the statement were admissible, any error in its exclusion was harmless, because the
erroneous  admission  or  exclusion  of  hearsay,  cumulative  to  properly  admitted
testimony, constitutes harmless error. State v. Williams (1988), 38 Ohio St.3d 346, 350,
cert. denied (1989), 489 U.S. 1040, 109 S.Ct. 1176.
{¶47}  Defendant's testimony presented the same evidence, stating that, while
defendant was at the victim's house earlier in the day, the victim accused defendant of

No. 11AP-50                                                                                   20
"trying to talk to [his] baby's mom," became aggressive, and moved his daughter out of
the way so as to be able to cause harm to defendant. (Tr. 195.) Defendant also testified
that when the victim walked in his house later the same day, he stated, "We going to
have to handle this, player. You been trying to talk to my baby's mom." (Tr. 203.) The
victim's aggressiveness toward defendant thus was apparent apart from the excluded
testimony,  rendering  the  victim's  statement  to  Locke  cumulative  of  other  evidence
presented. Moreover, the excluded evidence did not fortify defendant's self-defense
defense, since the other evidence demonstrated that defendant knew the victim and
allowed him to enter his house, stabbed the unarmed victim and caused the victim's
death. The trial court's decision to exclude the victim's statement to Locke was harmless
beyond a reasonable doubt.
{¶48}  Defendant's third assignment of error is overruled.
V. Disposition
{¶49}  Having  overruled  defendant's  four  assignments  of  error,  we  affirm  the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and FRENCH, JJ., concur.

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