Description: Canton, Ohio criminal defense lawyer represented the Defendant charged with one count of murder in violation of R.C. 2903.02(B)(D), 2929.02(B), an unclassified felony and one count of felonious assault in violation of R.C. 2903.11 (A)(1) and/or (2), 2903.11 (D)(1)(a), a felony of the second degree.

The charges stemmed from the fatal shooting of T.C. on October 25, 2022. Cunningham claimed that he had acted in self-defense. There is no dispute that Cunningham shot and killed T.C. with a nine-millimeter caliber Fabrique Nationale Browning semi-automatic pistol. The pistol was found at Cunningham's residence on the kitchen counter with a mix of bullets in the magazine and a hollow point bullet in the chamber.

Around 8:00 that evening, T.C. came to the Cunningham home and demanded his son. He was angry, yelling, screaming and kicking at the back door. Cunningham was at home playing video games with another grandson and his wife was upstairs with T.C.'s son. Two neighbors who lived a house away heard the commotion. One neighbor testified she heard somebody hollering "I just came to get my son, I just want to pick my son up, are you going to let me have my son." ... "I'm leaving but it's not over; I'll be back tomorrow to pick up my son" ... "What, now you got a gun, you're going to shoot me." Tr. 1B at 45. And then she heard shots. The neighbor's son testified similarly that he heard loud banging and heard someone saying he was there to get his kids and he wasn't leaving without his kids. "And then I heard a pause and I heard him say, you asked me to leave so I'm going to leave but I'll be back tomorrow to get my son, and it almost seemed like he had processed the situation what was going on." Tr.1 B at 57. The neighbor called 911.

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Legal issue Did the trial court commit plain error by failing to instruct the jury on the rebuttable presumption of self-defense under Ohio law R.C. 2901.05(B)(2)?

Key Phrases Criminal Appeal. Self-defense presumption. Jury instruction. Ineffective assistance. Rebuttable presumption.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

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