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11th District orders retrial in Portage County double homicide

Legal News Reporter

Published: August 9, 2019

The 11th District Court of Appeals has reversed a Portage County double murder case, ruling trial counsel was ineffective for failing to request a jury instruction on self-defense under the castle doctrine.

Thus, Javon M. Thomas – who was sentenced to 30 years to life in prison after being convicted of two counts each of murder, felonious assault and negligent homicide - was granted a new trial on all six counts.

Thomas was at a small party at the Ravenna apartment of his “off and on” girlfriend, Sadie Ochsenbine, on the night of Jan. 6, 2017. Trial testimony showed Thomas and another partygoer, neighbor Destany Dixon, got into a verbal argument over a joke Thomas made about Dixon playing a virtual reality game rather than drinking.

Ochsenbine testified Dixon left the party after making a phone call. About an hour later, Dixon returned to the apartment with her boyfriend, Brian Brack, who arrived with an “attitude.”

Ochsenbine said she told Brack – whom nobody else had ever met - to leave. He then stood up and pointed his gun at Thomas, telling him no one was going to “disrespect his girlfriend.” Meanwhile, Thomas had already had his weapon pointed at Brack. Ochensbine testified she heard shots fired and saw Thomas “backing up” toward the hallway in the apartment. She called 911 after seeing her co-worker, Austin Tiller, on the floor.

Both Tiller and Brack died as a result of their injuries. Dixon had gunshot wounds to her legs.

Another partygoer, Marlon Daniels, testified that he believes Thomas saved his life that day. Daniels claimed Thomas’ hands were empty, that Brack pulled out a gun, pointed it at Thomas, and Daniels jumped behind the couch. After the shooting, Daniels added that Thomas said something like, “I had no choice.”

Another witness, Rachel Gundlach, told the jury that following the joke, Dixon “threatened to call people” to talk to Thomas, before returning with Brack around 4 a.m. Gundlach said she saw Thomas had a gun in his lap and looked upset. Almost immediately after Thomas stood up with his gun, Brack stood up with his gun and they started shooting. She testified that she believed Thomas shot first, but it happened very fast. Gundlach said she did not feel threatened when Brack entered the home.

On cross-examination, Gundlach’s taped interview with police after the incident was played in which she stated that Brack stood up first and pointed his gun at Thomas before the shooting.

Dr. Todd Barr, deputy medical examiner for the Summit County Medical Examiner’s Office, testified Brack died of a chest wound and was also shot in the foot. Barr stated the angle of the bullet projected downward, which could have been consistent with him either sitting or standing at the time he was shot.

Tiller suffered four gunshot wounds, one in his thigh and three that entered through his back.

Johnathan Gardner of the Bureau of Criminal Identification testified that Brack’s .9mm firearm was the source of the bullet fragment in Tiller’s hip and the bullet in the television. Gardner said the bullets recovered in Brack’s body and two on the couch were fired from Thomas’ .380-caliber firearm.

Thomas, who had a concealed carry permit, testified on his own behalf stating he had been staying at Ochsenbine’s apartment a couple times a week. Thomas said when Brack walked in, he saw the gun in his jacket pocket and became afraid.

Thomas added that he lifted his own gun that had been hidden in his lap after Brack pointed a gun at his face. As Thomas began to get up from the chair, Brack fired. He stumbled backwards into a wall, heard another shot and began firing his gun rapidly toward Brack in self-defense, Thomas said.

The defendant began driving out of the parking lot but was stopped by police.

On appeal, Thomas argued the jury was prejudiced by his attorney’s failure to request a “castle doctrine” instruction as set forth in R.C. 2901.09(B) in addition to other self-defense instructions.

The appellate panel agreed.

“The 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,” 11th District Judge Matt Lynch wrote. “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.

“Further, there is no question that the residence requirement was met. 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). 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 argued Thomas failed to demonstrate he was not at fault in creating the situation and did not prove he acted in self-defense. Therefore, giving a no duty to retreat instruction would not have changed the outcome of the trial.

However, Judge Lynch’s opinion countered, “These arguments are based on selective conclusions rather than a full picture of the evidence presented to the jury.”

Appellate judges Thomas R. Wright and Cynthia Westcott Rice concurred.

The case is cited State v. Thomas, 2019-Ohio-2795.