2023 Ohio 3434
Ohio Ct. App.2023Background
- Defendant Deshawn Nesbitt was indicted for two counts of felonious assault (each with firearm specifications) and one count of having weapons while under disability arising from a July 17, 2021 party fight; he pled not guilty and was tried by jury.
- Several 18–20 year-old eyewitnesses and a phone video showed Nesbitt bend to pick up and appear to load a handgun, then fire multiple shots; Tanner Chenault was struck in the head and treated for a penetrating scalp injury.
- Law enforcement recovered one 40-caliber shell casing near the house and, later, a rusted .40 semi-automatic pistol in weeds near the unoccupied house; the gun had a spent casing lodged in its barrel; limited DNA testing was inconclusive.
- The jury acquitted Nesbitt of the count regarding Earles, but convicted him of felonious assault as to Chenault, the related firearm specification, and having weapons while under disability; aggregate sentence 13.5–17.5 years.
- Nesbitt appealed raising four issues: (1) trial court erred by refusing a negligent-assault lesser-included instruction; (2) conviction was against the manifest weight of the evidence; (3) Reagan Tokes Law is unconstitutional; and (4) R.C. 2923.13 (weapons-under-disability using juvenile adjudication) is unconstitutional.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Nesbitt) | Held |
|---|---|---|---|
| Whether court erred by refusing to instruct on negligent assault as a lesser included offense of felonious assault | Evidence supported felonious-assault mens rea (knowingly); negligent-assault instruction not required because jury could reasonably convict of the greater offense | Nesbitt argued evidence, at most, showed recklessness (negligence) not knowing conduct; therefore the jury should have been permitted to convict on negligent assault | No error. Negligent assault is a statutory lesser-included offense, but the court properly found no reasonable view of the evidence would permit acquittal on felonious assault yet conviction on negligent assault. |
| Whether conviction was against the manifest weight of the evidence | Eyewitness testimony and video sufficiently support that Nesbitt pointed and fired at Chenault; jury credibility determinations should be respected | Witnesses were young, intoxicated, inconsistent, and influenced by discussions/video; physical evidence (single shell) doesn't match State’s theory | Not against the manifest weight. Jury rationally credited eyewitnesses (including an unimpaired witness) and the video; inconsistencies did not require reversal. |
| Whether the Reagan Tokes Law (R.C. 2967.271) is unconstitutional (jury trial, separation of powers, vagueness, due process) | Statute is constitutional and recent Ohio Supreme Court precedent upholds it | Nesbitt contended it violates jury-trial rights, separation of powers, and is vague re: DRC discretion and hearing procedures | Rejected. Appellate court declined to address forfeited claim; even on merits, bound by State v. Hacker holding Reagan Tokes constitutional. |
| Whether R.C. 2923.13 is unconstitutional for permitting juvenile adjudications as predicate for adult weapons-under-disability convictions | The statute does not impermissibly increase penalty via non-jury juvenile adjudications; Ohio Supreme Court precedent permits its use | Nesbitt argued Apprendi requires jury finding for any fact increasing punishment and juvenile adjudications cannot serve as predicate | Rejected. Appellant’s challenge is forfeited; Carnes and related Ohio Supreme Court precedent uphold R.C. 2923.13. |
Key Cases Cited
- State v. Deanda, 989 N.E.2d 986 (Ohio 2013) (two-tier test for lesser-included-offense instructions)
- State v. Evans, 911 N.E.2d 889 (Ohio 2009) (criteria for determining statutory lesser-included offenses)
- State v. Deem, 533 N.E.2d 294 (Ohio 1988) (framework for comparing elements and penalties)
- State v. Wine, 18 N.E.3d 1207 (Ohio 2014) (trial court must view evidence in light most favorable to defendant when considering lesser-included instruction)
- State v. Shane, 590 N.E.2d 272 (Ohio 1992) (lesser-included instruction requires more than merely ‘some evidence’)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- State v. Hand, 73 N.E.3d 448 (Ohio 2016) (juvenile adjudication cannot be used as sentencing enhancement under Apprendi)
- State v. Carnes, 116 N.E.3d 138 (Ohio 2018) (upholding R.C. 2923.13 against due-process challenge; juvenile adjudication may serve as predicate for weapons-under-disability)