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Date: 07-28-2020
Case Style:
STATE OF OHIO v. DEVON C. WILLIAMS
Case Number: 29444
Judge: Lynne S. Callahan
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
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{¶2} On the morning of November 20, 2018, Mr. Williams fired fourteen rounds from a
firearm in the direction of a car parked near the door of a market on Arlington Street. When the
shooting started, a passenger in the car fled on foot. Mr. Williams fired several shots in the
passenger’s direction as he ran away, then continued to fire at the driver of the vehicle. The driver,
S.P., sustained gunshot wounds to his neck, torso, and leg, but attempted to flee by exiting the
passenger side of the vehicle and running south on Arlington Street. Moments later, S.P. collapsed
in the road, where he died from his injuries before the police arrived at the scene.
{¶3} Mr. Williams fired the shots from inside the market, and the market’s surveillance
cameras captured the shooting and the moments that led up to it on video. Outside surveillance
2
cameras at the market and other nearby businesses recorded the movements of other individuals
who were involved in the incident, including the passenger, S.P., and other witnesses. Numerous
witnesses placed 911 calls, but Mr. Williams fled the scene before the police arrived. A family
member provided information that led to the identification of Mr. Williams as the shooter, and Mr.
Williams turned himself in to police the following day.
{¶4} Mr. Williams was charged with one count of murder in violation of R.C.
2903.02(A), one count of murder in violation of R.C. 2903.02(B), two counts of felonious assault
in violation of R.C. 2903.11(A)(2), and one count of attempted murder in violation of R.C.
2903.02(A)/(B) and R.C. 2923.02. Each of these charges was accompanied by a firearm
specification pursuant to R.C. 2941.145(A). Mr. Williams was also charged with one count of
carrying a concealed weapon in violation of R.C. 2923.12(A)(2)/(F)(1). Prior to trial, Mr.
Williams moved the trial court to retroactively apply amendments to Ohio’s self-defense statute,
R.C. 2901.05(B). The State did not oppose the motion, and Mr. Williams testified during trial that
he feared for his life because of three prior encounters with S.P. The trial court instructed the jury
pursuant to the amended statute.
{¶5} The jury found Mr. Williams guilty of all charges and accompanying firearm
specifications. The trial court merged counts one, two, and three with their firearm specifications
and counts four and five with their firearm specifications, then sentenced Mr. Williams to prison
terms totaling twenty-five years to life. Mr. Williams filed this appeal.
II.
ASSIGNMENT OF ERROR
APPELLANT DEVON C. WILLIAMS’ CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
3
{¶6} In his single assignment of error, Mr. Williams argues that his convictions for
murder, attempted murder, and felonious assault are against the manifest weight of the evidence.
Specifically, Mr. Williams has argued that the conclusion that the State proved beyond a
reasonable doubt that Mr. Williams did not act in self-defense is against the manifest weight of the
evidence
{¶7} When considering whether a conviction is against the manifest weight of the
evidence, this 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 the
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶8} R.C. 2903.02(A), which prohibits murder, provides that “[n]o person shall
purposely cause the death of another.” R.C. 2903.02(B), which prohibits felony murder, provides
that “[n]o person shall cause the death of another as a proximate result of the offender’s committing
or attempting to commit an offense of violence that is a felony of the first or second degree and
that is not a violation of section 2903.03 or 2903.04 of the Revised Code.” R.C. 2903.11(A)(2),
which prohibits felonious assault, provides that “[n]o person shall knowingly * * * [c]ause or
attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous
ordnance.”
{¶9} Mr. Williams did not dispute that he fired the shots that resulted in S.P.’s death or
that he fired shots in the direction of the passenger of S.P.’s vehicle as he fled on foot. Instead,
Mr. Williams maintained that his actions were justified because he acted in self-defense. Self-
4
defense requires that a defendant “was not at fault in creating the situation giving rise to the affray;
* * * [had] a bona fide belief that he was in imminent danger of death or great bodily harm and
that his only means of escape from such danger was in the use of such force; and * * * [did] not *
* * violate[] any duty to retreat or avoid the danger.” State v. Robbins, 58 Ohio St.2d 74 (1979),
paragraph two of the syllabus. An individual who is the first aggressor in an incident is “at fault”
for purposes of self-defense. State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346, ¶ 23 (2d
Dist.), citing Robbins at 80-81. See, e.g., State v. Hanford, 9th Dist. Summit No. 29204, 2019-
Ohio-2987, ¶ 19-27.
{¶10} Each of these elements must be present to establish self-defense. See State v.
Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 73, citing State v. Jackson, 22 Ohio St.3d 281, 284
(1986). Until recently, self-defense was an affirmative defense that was required to be proven by
a defendant by a preponderance of the evidence. See Hanford at ¶ 19, citing State v. Martin, 21
Ohio St.3d 91 (1986), syllabus, and former R.C. 2901.05(A). Recent amendments to R.C.
2901.05(B), however, reallocated the burden of proof with respect to self-defense:
A person is allowed to act in self-defense * * *. If, at the trial of a person who is
accused of an offense that involved the person’s use of force against another, there
is evidence presented that tends to support that the accused person used the force
in self-defense, defense of another, or defense of that person’s residence, the
prosecution must prove beyond a reasonable doubt that the accused person did not
use the force in self-defense * * *.
(Emphasis added.) R.C. 2901.05(B)(1). Consequently, once there is evidence presented at trial
that tends to support that the defendant acted in self-defense, the State must disprove one of the
elements of self-defense beyond a reasonable doubt. State v. Carney, 10th Dist. Franklin No.
19AP-402, 2020-Ohio-2691, ¶ 31. Compare Cassano at ¶ 73 (noting that the elements of selfdefense are framed cumulatively).
5
{¶11} In Ohio, there is an objective and a subjective aspect involved in determining
whether a defendant had a bona fide belief that he or she was in imminent danger of death or great
bodily harm: an individual’s belief that he or she was in imminent danger must be objectively
reasonable, and the individual must have an honest subjective belief to that effect. See State v.
Thomas, 77 Ohio St.3d 323, 331 (1997). See also State v. Brown, 9th Dist. Wayne No. 19AP0004,
2020-Ohio-529, ¶ 26-28; State v. Huguley, 9th Dist. Summit No. 28322, 2017-Ohio-8300, ¶ 35,
quoting State v. Inman, 9th Dist. Medina No. 03CA0099-M, 2004-Ohio-1420, ¶ 9. Both aspects
of this element require this Court to consider all of the surrounding circumstances. Huguley at ¶
35, quoting Inman at ¶ 9.
{¶12} A defendant cannot introduce evidence of prior acts on the part of a victim to
establish that the victim was the initial aggressor. State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio68, syllabus. With respect to whether the defendant had an honest subjective belief that he or she
faced an imminent threat of harm, however, “[t]he defendant’s state of mind is crucial[.]” State v.
Koss, 49 Ohio St.3d 213, 215 (1990). Accordingly, “‘[c]ourts have consistently held that a
defendant arguing self-defense may testify about his knowledge of specific instances of the
victim’s prior conduct in order to establish the defendant’s state of mind at the time of the
incident.’” In re D.N., 195 Ohio App.3d 552, 2011-Ohio-5494, ¶ 15 (8th Dist.), quoting State v.
Baker, 88 Ohio App.3d 204, 208 (9th Dist.1993). Similarly, “[i]n determining whether there are
reasonable grounds for believing there was an imminent threat of great bodily harm, [courts] can
consider whether the defendant received prior threats.” Parma v. Treanor, 8th Dist. Cuyahoga
No. 106275, 2018-Ohio-3166, ¶ 25. When a defendant offers evidence of prior threats of violence,
the gravamen of the evidence is the reason that the threats were made. State v. Randle, 69 Ohio
App.2d 71, 73 (10th Dist.1980). Unless an explanation for the reason for prior threats is offered,
6
it is unlikely that they will establish reasonable grounds for believing that an imminent threat of
harm existed. See id.
{¶13} Mr. Williams does not dispute that he fired the shots that killed S.P. or that, in the
course of firing the gun, he turned and fired toward the passenger of S.P.’s car as he fled on foot.
To this extent, there is no disagreement about the facts, many of which were captured on
surveillance video from the scene. Officer Kevin Davis, who prepared a report that placed the
surveillance footage in chronological order, testified at trial regarding the timeline that the footage
establishes. At 10:01 a.m., Mr. Williams walked into the market with another man, later identified
as R.H. A third man, later identified as B.S., was in the store conversing with the manager when
Mr. Williams and R.H. entered. At 10:02:16 a.m., S.P.’s vehicle pulled into the parking lot of the
market and parked just outside the entrance with the driver’s side of the vehicle nearest the
building. At that moment, Mr. Williams, B.S., and the store manager were having a conversation
at the counter inside the market. From the surveillance video, it appears that Mr. Williams and
B.S. immediately noticed that the car pulled up. Within five seconds, Mr. Williams—who was
still standing at the counter—turned toward the entrance and drew his firearm. A smile was evident
on his face as he drew the firearm. The surveillance video demonstrates that his firearm was drawn
and ready to fire before he stepped away from the counter.
{¶14} According to the time stamp on the surveillance video, Mr. Williams reached the
door to the market at 10:02:28 a.m., just twelve seconds after S.P.’s car turned off of Arlington
Street into the parking lot. Only the front driver’s side corner of S.P.’s vehicle was visible from
the market entrance. The surveillance video depicts that without hesitation, Mr. Williams opened
the market door with his left hand while raising his firearm with his right, aimed the firearm at the
level of the driver’s side window, and opened fire at 10:02:29 a.m. At 10:02:30 a.m., the other
7
individuals in the market reacted to the shots being fired by moving away from the counter toward
the back of the market. Two seconds later, Mr. Williams pivoted to the left and opened fire on an
individual who was moving away from the car. He immediately pivoted back to his original
position and opened fire in the direction of S.P.’s vehicle again. At 10:02:36 a.m., Mr. Williams
lowered his weapon, exited the market, and walked around the front corner of the building. Mr.
Williams can be seen leaving the scene at 10:02:44 a.m. and running southbound along Arlington
Street. As the videos demonstrate, the entire course of events played out in less than thirty seconds.
{¶15} Surveillance video taken from a position across the street from the market captured
the movements of S.P. and his passenger as well. According to the time stamp on that video, S.P.
stumbled from the open passenger side door of his vehicle at 10:02:33 a.m. He ran across Palmetto
Avenue and along Arlington Street before collapsing in the southbound lane of traffic seconds
later. This video also depicts Mr. Williams leaving the scene as S.P. collapsed in the roadway.
{¶16} Dr. Lisa Kohler, the Chief Medical Examiner for Summit County, testified that S.P.
sustained three gunshot wounds, two of which were fatal. One entered the left base of his neck,
“dislodged” in his trachea, and was aspirated into his airway, injuring S.P.’s trachea, carotid artery,
and right lung as it traveled. A second bullet entered the area of his lower left ribcage, passing
through his liver, pancreas, and lung and coming to rest in soft tissue. As a result of these injuries,
over a quart of blood filled the pleural space of the right lung, aspirated blood entered the right
lung, and some additional bleeding occurred in S.P.’s abdomen. Both of these injuries were fatal,
but Dr. Kohler explained that because S.P. did not sustain a lethal brain injury, “it takes a while
for the brain to realize that it doesn’t have enough oxygen to keep the body going. And it’s going
to take a period of time for him to bleed out and get to a critical point where he can no longer
8
function.” According to Dr. Kohler, this process explains S.P.’s ability to flee the scene of the
shooting on foot, albeit briefly, until he succumbed to his injuries when he fell to the ground.
{¶17} R.H., who walked into the market with Mr. Williams, testified that he encountered
Mr. Williams as he walked along Palmetto Avenue, asked him to purchase cigarettes in the market,
then followed Mr. Williams inside. R.H. testified that once they entered the store, he walked
toward the back to find a beverage and some chips. From that vantage point, he heard someone
refer to S.P. by his last name, then saw Mr. Williams smile, draw a concealed weapon, and walk
to the entrance. He heard someone say, “‘You think this [is] a game?’” and then heard gunshots.
R.H. moved to the back of the store because he feared being shot, then left the store and ran home.
{¶18} L.T. was the passenger in S.P.’s vehicle when he arrived at the market. He testified
that he knew Mr. Williams from the neighborhood. L.T. acknowledged that he was on parole after
serving two years in prison for a burglary conviction. On the day of the incident, S.P. called L.T.
and told him that he was going to the store. L.T. testified that he accompanied S.P. to the market
in a rental car and that the market was not the store that they ordinarily frequented. L.T.
acknowledged that as S.P. drove, he recorded a cellphone video as he and S.P. listened to music.
He also acknowledged that, as depicted in the video, S.P. had a gun in his lap as he drove. L.T.
explained that some hand signs that are depicted in the video refer to firing a gun. He testified that
when they arrived at the market, S.P. parked his car near the entrance. Although he did not know
why S.P. parked there, L.T. explained that it was not unusual and noted that the lined spaces are
on the other side of the building. L.T. testified that as the video ends, a gunshot can be heard. He
explained that he was surprised and that he immediately opened the car door and fled on foot.
{¶19} L.T. acknowledged that he did not tell the police about the cellphone video or S.P.’s
gun until they found out from another source. He also testified that he did not know that Mr.
9
Williams was there, that he had no issues with Mr. Williams, and that he and S.P. did not go to the
store with the intention of shooting Mr. Williams. L.T. denied that he ever held S.P.’s gun in his
hand.
{¶20} Z.H., the manager of the market, testified that he was working behind the counter
on the morning of the incident. He noted that there were three individuals in the market at the time
and recalled that they were talking to one another. He identified B.S. from a surveillance video as
a frequent customer known as “Big B.” He recognized Mr. Williams as a customer who came to
the market “on and off.” Z.H. did not know at the time who the victim of the shooting was, but he
later recognized a picture of the victim as S.P., who came to the market “once in a while.” He
explained that it was not uncommon for people to park next to the door of the building as S.P. did,
and that he only told them to move when he was outside the store to observe it.
{¶21} Lieutenant David Whiddon was one of the officers who responded to the scene of
the shooting. He testified that it was “extremely difficult” to see into the market from outside. He
also noted that based on his familiarity with the area, it was not unusual for patrons to park near
the market door where S.P.’s vehicle was located. Lieutenant Whiddon testified that the Akron
Police Department had no reports of contact between S.P. and Mr. Williams before the shooting,
but acknowledged that B.S. provided information about previous contacts during the course of the
investigation. Based on the evidence gained during the investigation, Lieutenant Whiddon
testified that there was no indication that S.P. knew that Mr. Williams was inside the market or,
conversely, that Mr. Williams knew that S.P. would be there.
{¶22} The gun depicted in L.T.’s cellphone video was found in S.P.’s vehicle after the
shooting. According to a firearms expert from BCI, the gun had been illegally modified to render
it fully automatic. Lieutenant Whiddon described the physical location of the gun after the
10
shooting. According to his testimony, the gun was found on the passenger side of the vehicle
lodged between the passenger seat and the pillar—the portion of the car body that supports the
roof between the front and back doors—as though it had been “stuffed in the vehicle with the
handle * * * facing in the air.” Lieutenant Whiddon testified that because of the placement of the
gun, his initial assumption was that it belonged not to S.P., but to the passenger, L.T. Despite that
assumption, L.T.’s DNA was not identified on the weapon, and Lieutenant Whiddon
acknowledged that it was possible that S.P. placed the gun there as he exited the passenger side of
the vehicle.
{¶23} Detective Donald Frost also described the physical location of the gun found in the
car, noting that “the handgrip [was] up with the barrel facing the rear, so the butt of the gun was
up towards the front and the end of the barrel where the bullet would come out from was facing
towards the rear.” He testified that he photographed the vehicle where it was found, but
acknowledged that due to human error, the photographs had not been preserved. Detective Frost
explained that most of the blood found in the vehicle was near the passenger side front door and
there was not a significant amount on the driver’s side door, on the floorboards, or on the center
console. He noted that there was blood on the firearm when he found it. Detective Frost also
testified that there were bullet holes spread across the vehicle, with at least seven in the driver’s
side door alone.
{¶24} Mr. Williams testified in his own defense. He explained that he grew up in the area
of the shooting, but had since moved to Tallmadge, where he lived with his grandmother and his
girlfriend. He explained that he returned to the neighborhood to visit because he had friends who
still lived nearby. He also explained that he knew S.P. as they were growing up, but noted that he
had conflict with S.P.’s friends.
11
{¶25} During his testimony, Mr. Williams pointed to three incidents in the year prior to
the shooting that, according to him, led him to shoot S.P. in self-defense. The first incident that
he described happened in the fall of 2017 when he attended a high school football game at the
University of Akron. According to Mr. Williams, he saw S.P. and some of his friends laying on
their car outside the stadium. He testified that as he and his companions approached, S.P. and his
friends were “mean-mugging” him and that one muttered something under his breath. When Mr.
Williams asked what the man said, the man threw a concession cup at him. Mr. Williams testified
that a mutual confrontation resulted, during which he dropped his phone and S.P. picked it up. Mr.
Williams testified that as he argued with S.P., he saw the handle of a gun in S.P.’s waistband. Mr.
Williams testified that he backed away from the confrontation when he saw the gun, approached
Akron police officers, and reported that S.P. had taken his phone. Mr. Williams recalled that he
did not get the phone back, and he testified that in the days that followed, S.P. and his friends were
answering his phone and telling people that he had “pulled up to the Rosemary,” a neighborhood
in conflict with the one in which Mr. Williams grew up.
{¶26} Mr. Williams testified that he had no further contact with S.P. until July 2018. At
that time, he went to a drive-thru at a market in the Rosemary area with an acquaintance. Mr.
Williams testified that he made eye contact with S.P., who was on foot, opened his car door, and
heard S.P. threaten him. Mr. Williams stated that he did not see a gun on S.P.’s person, but he
recalled that S.P.’s hand was positioned on his side as though he had a gun. S.P. left the business
without incident.
{¶27} Mr. Williams explained that his final encounter with S.P. happened a month or two
later when he was walking near the neighborhood where he grew up. At that time, he saw B.S.
across a parking lot and walked over to join him. The two had a conversation, which Mr. Williams
12
characterized at trial as “stalling” on the part of B.S., then S.P. approached in a vehicle, parked,
and “got all aggressive with [him].” Mr. Williams testified that S.P. pointed a gun at him,
threatened him, pistol-whipped him, and robbed him. The two had no further interaction until the
day of the shooting.
{¶28} Mr. Williams also described the events that took place on the day of the shooting.
According to his account, he decided to go to the market to purchase cigars. He testified that he
carried a gun for protection. Mr. Williams recalled that B.S., who was in the market when he
arrived, saw S.P. pull up to the entrance and identified him. Mr. Williams testified that he did not
recognize the car, but determined to “get ready because last time [S.P.] caught me slipping.” He
explained that he saw someone get out of the passenger door and walk toward the entrance to the
market and assumed that “[t]hey was about to come out and kill me.” He acknowledged that he
opened the market door, aimed at S.P., and fired his gun, both at the vehicle and at L.T. as he fled
on foot. Mr. Williams denied that he yelled, “You think this is all a game?” and he characterized
his smile as an expression of nervousness or fear. He acknowledged that the driver’s side door to
S.P.’s vehicle was closed and the window was raised. Nonetheless, Mr. Williams testified that he
made a “split-second decision” to fire the gun because he saw S.P. with a gun in his hand.
{¶29} The jury, therefore, heard Mr. Williams’ testimony that he had three previous
encounters over the course of a year with S.P. that were of a threatening nature, one of which was
a mutual confrontation. The jury also heard his testimony that within a month or two prior to the
shooting, S.P. physically attacked and threatened Mr. Williams. Mr. Williams testified that he was
afraid and that, as a result, he avoided the area in which the shooting occurred. The prior incidents
that he described were relevant to the extent that they provided insight into Mr. Williams’ state of
mind—whether he had a bona fide belief that he was in imminent danger of death or great bodily
13
harm. But, as noted above, Mr. Williams’ belief that he was in imminent danger must have been
objectively reasonable, and the evidence must indicate that he had an honest subjective belief to
that effect. See Thomas, 77 Ohio St.3d at 331. See also Brown, 2020-Ohio-529, at ¶ 26-28;
Huguley, 2017-Ohio-8300, at ¶ 35, quoting Inman, 2004-Ohio-1420, at ¶ 9. In other words, under
R.C. 2901.05(B), the State may disprove self-defense by demonstrating that Mr. Williams’ belief
was not objectively reasonable or that he did not have an honest subjective belief that he faced
imminent death or bodily harm. All of the evidence bears on these determinations. See Huguley
at ¶ 35, quoting Inman at ¶ 9.
{¶30} In that regard, the jury watched numerous surveillance videos that documented the
sequence of events in question, including the quick succession of events that led to S.P.’s death.
Notably, that evidence demonstrated that Mr. Williams heard that S.P. was present in the car that
pulled up, smiled, pulled and readied his weapon, and fired fourteen rounds all within a matter of
seconds. Although Mr. Williams offered testimony that his facial expression was actually one of
fear or nervousness, the jury was free to reach a different conclusion based on the videos’
depictions of his facial expressions and demeanor in the seconds before he opened fire. The nature
and timing of the prior interactions with S.P. that Mr. Williams described, which were remote in
time to the shooting and for which Mr. Williams offered no rationale, could also have led the jury
to conclude that any belief on his part that he was in imminent danger was not objectively
reasonable. Further, although Mr. Williams suggested that the jury could draw an inference that
S.P. knew that he was present in the store, this inference is undermined by the quick succession of
events and by L.T.’s testimony that he and S.P. did not travel to the market to find Mr. Williams.
Along the same lines, Detective Whiddon also testified that the investigation yielded no
information that either Mr. Williams or S.P. knew that the other would be present.
14
{¶31} The jury could also have questioned whether Mr. Williams was at fault in the
shooting. Specifically, the quick succession of events as depicted in the videos could call into
question Mr. Williams’ assertion that he stopped, crouched down at the door, and saw S.P. with a
gun in his hand before he decided to open fire. It is also significant in this respect that the
surveillance videos depict only the front corner of S.P.’s vehicle from the vantage point of the
entrance.
{¶32} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest
weight review. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Martin, 20 Ohio
App.3d at 175. Nonetheless, this Court is mindful of the well-established principle that a trier of
fact enjoys the best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain
No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161,
2010-Ohio-3296, ¶ 15. Compare Brown, 2020-Ohio-529, at ¶ 23-31; Hanford, 2019-Ohio-2987,
at ¶ 17-27 (both undertaking a manifest-weight analysis in the context of former R.C. 2901.05).
Given the evidence in this case, this Court cannot conclude that this is the exceptional case in
which the evidence weighs heavily against the conclusion that the State disproved the elements of
self-defense.
{¶33} Mr. Williams’ assignment of error is overruled.
lee.
Outcome: Mr. Williams’ assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: