Legal Research

Legal Research



Defendant was entitled to a new trial because counsel was ineffective by failing to request a “castle doctrine” instruction, as there was a reasonable probability that the outcome would have been different if the proper jury instruction had been given; given the conflicting versions of events, an instruction on the castle doctrine could have established a critical element of defendant’s self-defense claim, and there was no strategic basis to omit such an instruction.


Reversed and remanded.


On January 12, 2017, the Portage County Grand Jury issued an Indictment, charging Thomas with Murder (Count One), an unclassified felony, in violation of R.C. 2903.02(A), and Murder (Count Two), an unclassified felony, in violation of R.C. 2903.02(B). A Supplemental Indictment was filed on March 31, 2017, charging Thomas with two counts of Aggravated Murder (Counts Three and Six), unclassified felonies, in violation of R.C. 2903.01(A); Murder (Count Four), an unclassified felony, in violation of R.C. 2903.02(A); Murder (Count Five), an unclassified felony, in violation of R.C. 2903.02(B); and two counts of Felonious Assault (Counts Seven and Eight), felonies of the second degree, in violation of R.C. 2903.11(A)(2) and (D). All eight counts had firearm specifications pursuant to R.C. 2941.145. Defendant-appellant, Javon M. Thomas, appeals his convictions and sentence for Murder, Felonious Assault, and Negligent Homicide, following a jury trial in the Portage County Court of Common Pleas. A trial was held on October 4 through 12, 2017. On the night of January 6, 2017, and into the early morning hours of January 7, Sadie Ochsenbine held a small party at her apartment with friends and coworkers. Present at the party were Thomas, whom Ochsenbine described as having an “off and on” relationship with her, his friend Marlon Daniels, Destany Dixon, and Ochsenbine’s coworkers, Austin Tiller and Rachel Gundlach. Ochsenbine testified that Thomas “periodically” spent nights at her residence, sometimes staying a few days or a week there. During the party, they played a drinking game and a virtual reality game. At one point, Dixon and Thomas got into a verbal argument over a joke Thomas made about Dixon playing the virtual reality game rather than drinking. Ochsenbine testified that Tiller intervened to calm the situation, but Dixon stopped socializing, made a phone call, and left soon thereafter. According to Ochsenbine, about an hour later, Dixon, who lived in an upstairs apartment, called and said she would return. Dixon entered the apartment with her boyfriend, Brian Brack. Ochsenbine stated the others in the room had never met Brack and did not know him. She described Dixon and Brack as having an “attitude,” smirking upon entering, and immediately proceeding to sit on the couch. Brack made a comment about everyone being quiet and Ochsenbine responded there was no reason for him to be there. He then stood up, “drew his weapon from his jacket pocket and said that no one was going to disrespect his girlfriend.” He pointed his weapon at Thomas, who had his weapon pointed at Brack. Ochsenbine then heard shots being fired and saw Thomas “backing up” toward the hallway in the apartment. People began running, she saw Tiller on the floor, and called 911. Marlon Daniels also described the argument between Thomas and Dixon arising from a joke. Dixon left the party and returned with Brack around 4 or 4:15 a.m. Daniels testified that he believed immediately when Brack entered he had a firearm in his hands because of the way he had his hands in his pockets. Daniels testified that Dixon had body language that he interpreted as meaning “what are you going to do now” directed toward Thomas. After the two sat down, Daniels heard Brack make several statements about it being quiet in the apartment and have a verbal exchange with Ochsenbine. Daniels heard the sound of a round being placed in the chamber of a gun, coming from Thomas’ direction and heard Thomas say, “It’s not going down like that.” He looked up and saw Thomas’ hands were empty. Brack then pulled out a gun, reached around Dixon, pointed it at Thomas, and Daniels jumped behind the couch. He heard multiple shots but did not know who fired them. After the shooting, Thomas said something like, “I had no choice” or “look what he made me do.” Daniels believed Thomas saved his life that day. The Trial Court convicted and sentenced him for under, Felonious Assault, and Negligent Homicide. The issues to be determined by this court are whether counsel is ineffective and reversible error is committed when a castle doctrine instruction is not requested or given in a case where there is evidence to support an affirmative defense of self-defense and whether the trial court errs in failing to admit text messages that have been extracted from a phone but the owner of the phone is not identified.


The court noted that the lower court did give an instruction that there is a presumption of self-defense when a person enters a residence unlawfully, pursuant to former R.C. 2901.05(B)(1), although said instruction does not discuss a duty to retreat. This is not a substitute for a castle doctrine or a no duty to retreat, instruction, which was more properly applicable in this circumstance. There was no assertion that Brack entered the apartment unlawfully, as he came with his girlfriend, Dixon, an invited guest. See State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-2229, distinguishing between the proper instructions for victims who have lawfully or unlawfully entered the residence. Further, there is no question that the residence requirement was met. HN6 A residence for the purposes of the castle doctrine is described as “a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.” R.C. 2901.05(D)(3); R.C. 2901.09(A), “as used in this section, ‘residence'” has the same meaning “as in section 2901.05 of the Revised Code”. Thomas was an invited guest of Ochsenbine’s at the time of the party and often lived in her apartment for days at a time. Thus, a castle doctrine instruction should have been given under these circumstances.

The State does not refute the foregoing but, rather, argues that Thomas failed to demonstrate he was not at fault in creating the situation and did not prove he acted in self-defense. Thus, giving a no duty to retreat instruction would not have changed the outcome of the trial. Several courts have addressed similar situations and found that the failure for the jury to be given a castle doctrine instruction was reversible error, under a plain error standard or due to ineffective assistance of counsel. In State v. Lewis, 2012-Ohio-3684, 976 N.E.2d 258 (8th Dist.), the appellate court held that, where the defendant was a resident of the home where the murder occurred but no castle doctrine instruction was given, this constituted plain error and he “did not receive a fair trial because the jury did not deliberate with a complete set of instructions.” In Dale, where the defendant and the victim gave two separate versions of events leading to a shooting which occurred at the defendant’s residence, the court rejected a plain error argument but held that the jury could have found that the elements of self-defense were met, and, thus, defense counsel was ineffective by failing to request a castle doctrine instruction when there was “sufficient evidence of such nature and quality
See also City of Parma v. Treanor, 2018-Ohio-3166, 117 N.E.3d 970, ¶ 26-32 (8th Dist.)
to warrant an instruction on self-defense” and the castle doctrine instruction was not given, reversal of the defendant’s convictions was required.


The court acknowledged that this assignment is rendered moot by the determination to reverse and remand for a new trial due to the improper jury instruction. However, for the sake of judicial economy and to prevent possible error at a subsequent trial, the court briefly addressed this assignment for the purposes of explaining the proper authentication of cell phone records. It was emphasized that there is a “low threshold standard” for proving the authenticity of evidence. There is no requirement to present “conclusive proof of authenticity, but only sufficient foundational evidence for the trier of fact to conclude that the document is what its proponent claims it to be.” The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims . In other words, the party seeking admission of the evidence need only demonstrate there is a “reasonable likelihood that the evidence is authentic.” “Any question about the reasonableness of the inferences” to be drawn from cell phone record evidence is “an issue of weight rather than admissibility.” The trial court determined that there was not sufficient evidence of authentication of the records since there was no direct testimony from a witness who knew the phone belonged to Dixon or cell phone records to establish the number tied to the phone was utilized by her. Given the low threshold for admissibility, we emphasize that there are a multitude of ways in which the cell phone text messages could be authenticated such that they would be admissible. While in many cases text messages are authenticated by the testimony of the recipient , this is by no means the only method of authentication. For example, if police officers can provide circumstantial evidence demonstrating a belief that the phone belonged to a certain party, such as identifying it by a unique ringtone and hearing the owner speak to a woman on the phone who was named in the cell phone data extraction reports, this can be sufficient to establish ownership of the phone for the purpose of authenticating cell phone text message records . In relation to the content of the text messages, which the trial court here did not consider, we note it has been held that the content of a conversation can be used to authenticate the speaker in a phone call when a defendant’s voice could not otherwise be identified, since the

State v. Guyton, 2016-Ohio-8110, 74 N.E.3d 939, (11th Dist.).
Evid.R. 901(A).
State v. Bickerstaff, 11th Dist. Ashtabula No. 2014-A-0054, 2015-Ohio-4014,
State v. Bickerstaff, 11th Dist. Ashtabula No. 2014-A-0054, 2015-Ohio-4014,
Bickerstaff at ¶ 17
State v. Norris, 2016-Ohio-5729, 76 N.E.3d 405, ¶ 39-43 (2d Dist.).

content provided “sufficient foundational evidence” to demonstrate the defendant was the one speaking . Additionally, testimony and records that establish subscriber information, either through a representative of a cell phone company or an individual with experience reviewing said records, provide another valid method of authentication . Such methods, by demonstrating a link to Dixon’s ownership and/or use of the cell phone, would be sufficient for the purposes of authentication. Furthermore, it appears that the text messages in question could aid the defense in establishing the circumstances under which Brack entered the party, adding potential support to the conclusion that he was the aggressor. Contrary to the State’s argument, then, such messages would be relevant. While the Court noted that it need not rule on whether the lower court erred in excluding the text message records for the purposes of this appeal, nothing in this court’s ruling precludes the defendant from seeking to have the records properly admitted in a subsequent trial. Having made the foregoing clarifications, the court found the first assignment of error moot. Given that the convictions must be reversed and a new trial held, the remaining assignments of error, which relate to the weight of the evidence as to the Felonious Assault convictions and alleged errors in sentencing are rendered moot. Thus, the court declined to address the fourth through ninth assignments of error. Therefore, the judgment of the Portage County Court of Common Pleas was reversed and remanded for further proceedings consistent with this opinion. Costs to be taxed against the appellee.
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Legal Research

by Admin-Ammoright time to read: 9 min