State v. Shepherd
2017 Ohio 328
| Ohio Ct. App. | 2017Background
- On Oct. 31, 2014, Joshua Shepherd and Holly Rumker confronted Zachary Hursell at his home after a disputed text-message exchange; a physical altercation occurred on Hursell’s porch/inside his home leaving Hursell with serious facial injuries.
- Shepherd was indicted for aggravated burglary (R.C. 2911.11(A)(1)) and felonious assault; he pleaded not guilty and went to jury trial.
- The State’s theory: Shepherd used force to enter/remain in an occupied structure and inflicted physical harm. The defense: Shepherd acted in self-defense after Hursell first lunged at him; Shepherd also sought an aggravated-assault (serious provocation) instruction.
- The trial court instructed the jury on self-defense but refused an aggravated-assault instruction as inconsistent with the self-defense theory and found insufficient evidence of serious provocation.
- The jury convicted Shepherd of both counts; the convictions were merged and the court sentenced Shepherd to five years on the aggravated burglary count.
- Shepherd appealed, arguing insufficiency/manifest weight as to aggravated burglary, error in refusing the aggravated-assault instruction, and ineffective assistance for not presenting PTSD evidence at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency/weight of evidence for aggravated burglary | State: evidence supports that Shepherd knowingly used force to enter/remain and inflicted harm | Shepherd: the force was solely to assault Hursell, not to gain entry; conviction against the weight of evidence | Affirmed — evidence was sufficient and not against the manifest weight (jury could find force caused entry/remained to continue beating) |
| Refusal to instruct on aggravated assault (serious provocation) | State: no evidence of serious provocation; instruction would conflict with self-defense | Shepherd: words, a lunge, and his PTSD provided both objective/subjective provocation to justify the instruction | Affirmed — no reasonable evidence of objectively serious provocation or that Shepherd acted under sudden passion/rage |
| Compatibility of self-defense and aggravated-assault instructions | State: generally incompatible; only give both if evidence supports both | Shepherd: both could be warranted given alleged provocation and PTSD | Affirmed — court properly refused aggravated-assault instruction despite self-defense instruction because elements lacking |
| Ineffective assistance for failing to present PTSD evidence | Shepherd: counsel should have elicited VA/PSI PTSD evidence to support provocation/self-defense; prejudice likely | State: omission was strategic to preserve primary self-defense theory and PTSD would undermine that defense | Affirmed — counsel’s choice was reasonable trial strategy and not deficient or prejudicial under Strickland |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (distinguishing sufficiency and manifest-weight review)
- Tibbs v. Florida, 457 U.S. 31 (1982) (relationship between weight and sufficiency standards)
- Jackson v. Virginia, 443 U.S. 307 (1979) (due-process sufficiency standard)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (Ohio standard for reviewing sufficiency)
- State v. Robinson, 162 Ohio St. 486 (1955) (manifest-weight reversal principles)
- State v. Deem, 40 Ohio St.3d 205 (1988) (definition and treatment of inferior-degree offenses)
- State v. Trimble, 122 Ohio St.3d 297 (2009) (defendant-favorable view when requesting inferior-offense instruction)
- State v. Mack, 82 Ohio St.3d 198 (1998) (serious-provocation objective/subjective analysis)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- State v. Ervin, 75 Ohio App.3d 275 (1991) (when both self-defense and lesser-included instructions may be required)