State v. ClayState v. Clay
{¶1} Dana K. Clay appeals his convictions for three counts of felonious assault, each with a firearm specification, and the resulting sentence of a fifteen-year prison term. Clay raises six assignments of error.
{¶2} First, Clay argues that the prosecutor engaged in misconduct by eliciting speculative testimony from a witness regarding Clay‘s motive for the crimes. However, the state presented substantial other evidence to prove Clay‘s guilt. Absent the improper questions or remarks, the jury still would have found Clay guilty, and thus, any alleged misconduct did not deprive Clay of a fair trial.
{¶3} Clay next asserts that the trial court deprived him of his right to
{¶4} Clay further argues that the trial court plainly erred by failing to give the jury instructions on accident and self-defense. Because the court‘s general charge instructed the jury regarding the proper mental state of “knowingly,” the jury necessarily concluded that Clay did not act accidentally. Thus, the court did not commit plain error by omitting an accident instruction because the omission did not affect the outcome of the trial. Nor did the court commit plain error by failing to give the jury a self-defense instruction. Clay defended the felonious assault charges by claiming that his dog made the weapon accidentally discharge. Clay did not testify that he discharged the weapon in self-defense. Thus, the facts did not warrant a self-defense instruction.
{¶5} Next, Clay contends that his trial counsel‘s ineffectiveness in failing to object to “the state‘s assertion of a baseless motive” and in failing to request accident and self-defense instructions deprived him of a fair trial. Even if counsel performed deficiently in any of these respects, the alleged deficiencies did not affect the outcome of the trial. Consequently, any alleged deficiencies did not prejudice Clay‘s defense, and Clay cannot establish that trial counsel rendered ineffective assistance of counsel.
{¶6}
{¶7} Finally, Clay argues that the cumulative errors deprived him of a fair trial. Because the record fails to show that multiple errors occurred, the cumulative error doctrine is not applicable.
{¶8}
I. FACTS
{¶9} Curtis and Sarah Mahan, (husband and wife), along with Michelle Jeter‘s two-year old child, suffered injuries after Dana Clay discharged his muzzle loader into the front windshield of the Mahans’ vehicle. A grand jury subsequently indicted Clay and charged him with three counts of felonious assault, each with a firearm specification.
{¶10} At trial Clay‘s defense was that he accidentally injured the three victims when his dog tripped him and caused the weapon to discharge. The jury rejected Clay‘s defense and found him guilty of all three felonious offenses and the accompanying firearm specifications.
{¶11} The trial court sentenced appellant to a total of fifteen years in prison: three years for each firearm specification, to be served consecutively to one another; and two years for each felonious assault conviction, to be served consecutively to one another and consecutively to the firearm specification sentences.
II. ASSIGNMENTS OF ERROR
{¶12} Appellant raises six assignments of error:
First Assignment of Error:
“Appellant was denied a fair trial by prosecutorial misconduct contrary to the state and federal constitutions.”
Second Assignment of Error:
“Appellant was prejudicially denied the right to present a defense contrary to the state and federal constitutions.”
Third Assignment of Error:
“The jury instructions were prejudicially insufficient contrary to Ohio law and the state and federal constitutions.”
Fourth Assignment of Error:
“Appellant was prejudicially denied the effective assistance of counsel contrary to the state and federal constitutions.”
Fifth Assignment of Error:
“Appellant was sentenced contrary to Ohio law and the state and federal constitutions.”
Sixth Assignment of Error:
“Appellant was denied due process by cumulative error contrary to Ohio law and the state and federal constitutions.”
III. PROSECUTORIAL MISCONDUCT
{¶13} In his first assignment of error, Clay argues that the prosecutor engaged in misconduct by eliciting speculative testimony from Curtis Mahan concerning Clay‘s motive. Clay claims that Mahan‘s speculation undermined Clay‘s defense of accidental discharge of the gun. Clay specifically asserts that the prosecutor engaged in misconduct through the following line of questioning:
“Q. And did you have, and the Court will instruct the jury that motive doesn‘t have to be proven in a case but do you, cause we don‘t know sometimes why people do things, but do you have some belief about why he would shoot into the car?
A. Jealously [sic].”
{¶14} Clay‘s counsel objected. The court overruled his objection, and the prosecutor continued:
“Q. So is it your testimony that, that the fact that the bullet was fired into the gun [sic] may have been that you and Sarah were taking the baby and Michelle to Columbus?
A. That‘s the only thing I can figure because we‘ve never had a problem.”
{¶15} “The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether they prejudicially affected the accused‘s substantial rights.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶226, citing State v. Smith (1984), 14 Ohio St.3d 13, 14–15, 14 OBR 317, 470 N.E.2d 883. “The touchstone of [the] analysis ‘is the fairness of the trial, not the culpability of the prosecutor.‘” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Thus, “[t]he conduct of a prosecuting attorney during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial.” State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987); accord State v. Givens, 4th Dist. No. 07CA19, 2008-Ohio-1202, ¶28. “In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury still would have found the appellant guilty.” State v. Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶15, citing State v. Maurer, 15 Ohio St.3d 239, 266, 473 N.E.2d 768 (1984); State v. Dixon, 8th Dist. Cuyahoga No. 68338 (Mar. 13, 1997).
{¶16} Even if we assume it amounted to improper conduct, the prosecutor‘s questioning did not prejudicially affect Clay‘s substantial rights.
{¶17} To establish felonious assault, the state was required to show, beyond a reasonable doubt, that Clay knowingly caused serious physical harm to another.
{¶18} “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.”
{¶19} When a defendant raises an accident defense, ‘“the defendant denies any intent * * *. He denies that he committed an unlawful act and says that the result is accidental.“’ State v. Poole, 33 Ohio St.2d 18, 20, 294 N.E.2d 888 (1973), quoting 4 Ohio Jury Instructions 177, Section 411.01 (1970). “[T]he defense of accident is ‘tantamount to a denial that an unlawful act was committed; it is not a justification for the defendant‘s admitted conduct. * * * Accident is an argument that supports a conclusion that the state has failed to prove the intent element of the crime beyond a reasonable doubt.‘” State v. Atterberry, 119 Ohio App.3d 443, 447, 695 N.E.2d 789 (1997).
“An accident is defined as an unfortunate event occurring casually or by chance. State v. Brady, 48 Ohio App.3d 41, 42, 548 N.E.2d 278 (1988). Accident is defined as a ‘mere physical happening or event, out of the usual order of things and not reasonably (anticipated) (foreseen) as a natural or probable result of a lawful act.’ 4 Ohio Jury Instructions 75,
Section 411.01(2). Moreover, ‘[a]n accidental result is one that occurs unintentionally and without any design or purpose to bring it about.’ Id.” State v. Chambers, 4th Dist. Adams No. 10CA902, 2011-Ohio-4352, ¶ 45.
{¶20} Here, the record contains ample evidence to show that Clay acted knowingly, even without Mahan‘s comments regarding Clay‘s potential motive, and that the shooting was not an accident. Mahan stated that he observed Clay “cock[ the weapon], raise it and fire through the front windshield of the vehicle.” Mahan testified that he believed Clay acted intentionally and explained: “From my vantage point he turned, raised [the weapon], boom.” A person, such as Clay, who points a weapon towards a vehicle containing three people and discharges the weapon certainly is aware that such conduct will probably cause harm to another. Mahan‘s testimony thus allowed the jury to conclude that Clay created the victims’ harm knowingly.
{¶21} Furthermore, the state presented other circumstantial evidence that tended to prove Clay‘s guilt. For instance, the state presented evidence that Clay fled after the shooting and avoided apprehension by escaping to West Virginia. Law enforcement officials did not apprehend Clay until six or seven weeks after the shooting.
{¶22} One of the investigating deputies testified that the muzzle loader used in the shooting did not have a safety feature but that if the weapon “was loaded and the hammer cocked,” the weapon would fire if the trigger was pulled. The deputy explained: “The trigger has certain amount of poundage or what we call poundage to pull it to activate it to make it fire. So if you pull that trigger with that amount of pressure, it will make it fire.” The state asked another deputy
“Q. I mean couldn‘t could you accidentally cock the weapon?
A. I don‘t see how you could, no I‘m * * *
Q. Then you have to pull the trigger for it to still fire?
A. Yes sir.
Q. But you can pull the trigger all day long and if you haven‘t cocked it, it won‘t fire?
A. No sir.”
{¶23} The prosecutor also questioned the defense witnesses’ credibility. The prosecutor asked Clay‘s fiancée, Nancy Ross, about the statement she made to 9-1-1 after the shooting:
“Q. I want to give you a chance to clear it up. This is the narrative, says ‘She then put Nancy on the phone who stated that she wasn‘t sure what set him off. But that all parties were outside the residence beginning to leave when he fired one shot out of the trailer into the windshield of the car where Sarah Mahan, Curtis, Michelle, and infant Jordan were.‘”
{¶24} The prosecutor asked Ross if her statement was accurate, to which she replied:
“A. Well Curtis said that he shot, he shot the muzzle loader and I know that Dana had a muzzle loader when the woman asked me, I told her that I, he shot a muzzle loader, he shot into a windshield I guess cause that‘s what Curtis said. But no I never seen a gun in his hand.”
{¶25} The prosecutor then inquired why the narrative to the 9-1-1 operator did not indicate that Ross had relayed to the operator what Curtis told her had happened:
“Q. This little statement here we‘re reading from the Dispatcher on the narrative, doesn‘t say that you said well Curtis told me, that happened, put Nancy on the phone who stated that she wasn‘t sure what set him off. I‘m assum[ing] you‘re referring to Dana?
A. Yea.
Q. Did you say that part?
A. I guess I did.”
{¶26} Clay testified in his defense and stated that on the night of the shooting, he and Ross were fighting about rumors Ross had heard that Clay was “doing drugs.” After he and Ross finished their discussion, Ross walked over to a truck with the intention of going to Wal-Mart. Clay stated that he thought Mahan waved a gun so Clay went into the house to retrieve his “muzzle loader cause I feared for my life and the life of my family.” Clay stated that he intended to ask Mahan why he was pointing a gun at him. Clay explained that before the shooting, he already had filled his muzzle loader and that he simply had to put a percussion cap in it. Clay testified that when he stepped out the door, “the dog tripped [him].”
{¶27} On cross-examination, the prosecutor asked Clay whether he had to cock the weapon before shooting it, and Clay responded “[y]es.” The prosecutor continued:
“Q. And it takes some degree of pressure to cock it?
A. Yes.
Q. And then if it‘s cocked back, then if the triggers [sic] pulled, which it takes some degree of pressure to pull the trigger?
A. Yea.
Q. Then it will fire?
A. Yea.
Q. So . . .
A. But if you got your finger on the trigger . . .
Q. I understand. That‘s what you‘re saying. That a dog hit ya. [sic] And did you fall to the ground?
A. No. He just staggered me around like that.
Q. And so that triggered a chain reaction of your thumb pulling the trigger or the cocking down and your index finger . . .
A. And my thumb flied [sic] off of it. Yea.
Q. Pulling the trigger?
A. Yea accidental shooting.
Q. As [o]pposed to some shoot guns [sic], you the automatics, it‘d just be the trigger, but here two things has to happen to for [sic] an accidental shooting to happen doesn‘t it?
A. Yes. But it‘s still accidental.”
{¶28} The jury rationally could have determined that Clay‘s claim that the dog accidentally caused the weapon to discharge was not believable and that Clay was lying. The jury could have rationally decided to reject Clay‘s testimony in its entirety—including his claim of accident—and conclude that the only logical explanation was that Clay knowingly fired the weapon. Clay‘s assertion that it was the prosecutor‘s “improper insinuation” that “undermined” his claim of accident is not persuasive. It is much more likely that Clay‘s incredible explanation, i.e., that his dog made him do it, “undermined” his claim of accident and caused the jury to reject it.
{¶29} Consequently, we conclude absent the questioning about motive, the jury still would have found Clay guilty. Because there was no prejudice to any of Clay‘s substantial rights, we overrule his first assignment of error.
IV. RIGHT TO PRESENT A DEFENSE
{¶30} In his second assignment of error, Clay asserts that he was denied the right to present a defense. Specifically, he contends that the trial court erred by prohibiting him from presenting evidence regarding Mahan‘s alleged violent reputation in order to support a self-defense claim. Clay argues that the court should have permitted him to testify regarding Clay‘s “knowledge that Mahan routinely carried a gun” and his “knowledge that Mahan saw action in the Balkans with the Army and was reputed to have engaged in unauthorized killings.”
{¶31} At trial, Clay testified, without objection, that he has seen Mahan carry a firearm on “[s]everal different occasions.” He further testified that he knew Mahan “was in the Army. Talked about killing kids and stuff in Kosovo.” The state objected, and the trial court sustained the objection. Clay asserts that if the court had overruled the state‘s objection, then the jury would have concluded that Clay‘s fear of Mahan was justified and that he acted in self-defense.
{¶32} “[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.‘” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Although the right to present a defense is a fundamental element of due process of law, the right is not without limits. Washington v. Texas, 388 U.S. 14, 19-21, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821, ¶13. The right has only been applied to “testimony [that] would have been relevant and material, and * * * vital to the defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), quoting Washington, 388 U.S. at 16. Moreover, the testimony or evidence must otherwise be admissible under the rules of evidence. Taylor v. Illinois, 484 U.S. 400, 411, 108 S.Ct. 646, 98 L.Ed. 2. 798 (1987); accord State v. Schuler, 4th Dist. Pickaway No. 02CA7, 2002-Ohio-6607, ¶16. Because the testimony Clay sought to introduce was not relevant, material, and vital to his defense, the trial court did
{¶33} “A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶14 (4th Dist.). The term abuse of discretion means more than an error of judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. E.g., State v. Lester, 4th Dist. Vinton No. 12CA689, ¶6, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). “A review under the abuse-of-discretion standard is a deferential review. It is not sufficient for an appellate court to determine that a trial court abused its discretion simply because the appellate court might not have reached the same conclusion or is, itself, less persuaded by the trial court‘s reasoning process than by the countervailing arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14.
{¶34} Generally, all relevant evidence is admissible. See
{¶35}
(A) Character evidence generally. Evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, subject to the following exceptions:
* * *
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable.
{¶36}
(A) Reputation or opinion
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(B) Specific instances of conduct
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
{¶37} Thus,
{¶38} Clay argues that Mahan‘s character for violence was pertinent to his self-defense theory. “[A] defendant claiming self-defense concedes he had the purpose to commit the act, but asserts that he was justified in his actions.” State v. Barnd, 85 Ohio App.3d 254, 260, 619 N.E.2d 518 (3rd Dist. 1993). “Self-defense is an affirmative defense that, if proved, relieves a defendant of criminal liability for the force that the defendant used.” State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097, ¶22 (8th Dist.).
{¶39} But even if Mahan had a character trait of engaging in “unauthorized killings,” this trait fails to be “pertinent” or “relevant” here. Clay‘s counsel did not argue that Clay acted in self-defense, and counsel did not request a self-defense instruction. Instead, Clay‘s theory at trial was that the shooting was accidental, not done in self-defense. Clay cannot argue in one breath that he did not intend to shoot anyone and then claim in another that he did. Barnd, supra. Because Clay‘s theory at trial did not involve self-defense, Mahan‘s alleged reputation for violence was not a pertinent character trait. State v. Jacobs, 4th Dist. Highland No. 11CA26, 2013-Ohio-1502, ¶42, (concluding that trial court did not abuse its discretion by excluding testimony regarding victim‘s alleged “engaging in uprovoked acts of violence” when self-defense not in issue).
{¶40} The evidence was not relevant, material, and vital to Clay‘s defense. Consequently, the trial court did not abuse its discretion by sustaining the state‘s objection to Clay‘s testimony about Mahan‘s military experience and
V. JURY INSTRUCTIONS
{¶41} In his third assignment of error, Clay argues that the trial court created plain error by failing to give the jury an accident or self-defense instruction. Under
{¶42} For a reviewing court to find plain error (1) there must be an error, i.e., “a deviation from a legal rule,” (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected “substantial rights,” i.e., it “must have affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Furthermore, the Supreme Court of Ohio has stated that “[n]otice of plain error under
{¶43} A trial court has broad discretion to decide how to fashion jury instructions. However, the trial court must “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if it is “‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.‘” State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993), quoting State v. Nelson, 36 Ohio St.2d 79, 303 N.E.2d 865 (1973), paragraph one of the syllabus.
{¶44} In general, a trial court errs by failing to provide a jury instruction on the accident defense when the facts of a case warrant such an instruction. State v. Smiley, 8th Dist. Cuyahoga No. 03853, 2010–Ohio–4349, ¶16. The facts ordinarily warrant an “accident instruction when there is evidence presented at trial that the party acted lawfully and the result was unintended.” Id. at ¶13. However,
“‘if the trial court‘s general charge was otherwise correct, it is doubtful that this error of omission would ever satisfy the tests for plain error or ineffective assistance of counsel.’ [State v. Stubblefield (Feb. 13, 1991), Hamilton App. No. C–890597], citing State v. Sims (1982), 3 Ohio App.3d 331, 335, 445 N.E.2d 245. This is so ‘“[b]ecause the accident defense is not an excuse or justification for the admitted act,” and the effect of such
an instruction “would simply * * * remind the jury that the defendant presented evidence to negate the requisite mental element,” such as purpose. In this regard, “[i]f the jury had credited [the defendant‘s] argument, it would have been required to find [the defendant] not guilty * * * pursuant to the court‘s general instructions. State v. Johnson, Franklin App. No. 06AP–878, 2007–Ohio–2792, ¶63 (internal citations omitted).“‘”
Id.; accord State v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, ¶61.
{¶45} For example, in Smiley, the court held that in a felonious assault prosecution trial counsel‘s failure to request an accident instruction did not prejudice the defendant when the trial court properly instructed the jury regarding the requisite mental state of knowingly. The court reasoned that the knowingly instruction clearly informed the jurors that “knowing conduct * * * goes beyond that considered to be an accident” and that “an accident instruction would not have added anything to the general instructions.” Id. at ¶19. The court stated that if the jury had believed the defendant‘s accident claim, then it would have returned a not guilty verdict in accordance with the general instructions that the trial court did provide. Id.; accord State v. Juntunen, 10th Dist. Franklin Nos. 09AP–1108 and 09AP–1109, 2010–Ohio–5625, ¶16 (concluding that jury‘s finding that defendant acted knowingly when he caused physical harm to the victim negated any potential for finding that defendant acted unintentionally or unknowingly in causing such harm so as to warrant an accident instruction); State v. Johnson, 10th Dist. Franklin No. 06AP-878, 2007-Ohio-2792, ¶64, (finding no plain error when the defendant was charged with murder, and the trial court instructed the jury that the state bore the burden of proof beyond a reasonable doubt on every element of the offense, including the “purposely”
{¶46} We applied these principles in State v. Chambers, supra, and concluded that the trial court did not commit plain error by failing to give the jury an accident instruction. We explained:
” ***, the trial court properly instructed the jury regarding the applicable mental state, knowingly. By definition, the term “knowingly” means that the defendant‘s conduct was not an accident. By finding that appellant acted knowingly, the jury necessarily concluded that he was aware of his conduct and thus, that his conduct could not have simply been accidental. Thus, the court‘s knowingly instruction adequately conveyed to the jury the requisite mental state, and had the jury believed appellant‘s claimed accident theory at trial, it could not have found that he acted knowingly. We therefore see no danger that the jury wrongly convicted appellant due to the absence of an accident instruction.”
{¶47} Likewise we see no danger here that the jury wrongly convicted Clay due to the absence of an accident instruction. The trial court properly instructed the jury regarding the “knowingly” element. By finding that Clay acted knowingly, the jury necessarily concluded that Clay was aware of his conduct and that his conduct in shooting the weapon was not accidental. Thus, the trial court did not commit plain error by failing to give the jury an accident instruction.
{¶48} Nor did the trial court commit plain error by failing to give the jury a self-defense instruction. “Accident and self-defense are generally ‘inconsistent
{¶49} Clay‘s defense was that he accidentally discharged the weapon when his dog tripped him. We acknowledge that he also claimed he thought Mahan waved a gun at him and stated he grabbed the weapon because he feared for his life. However, Clay did not testify at trial that he intended to shoot Mahan because he feared for his life. Rather, he continued to maintain that he did not intend to discharge the weapon and that the dog caused the weapon to
VI.
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶50} In his fourth assignment of error, Clay asserts that trial counsel was ineffective for failing to object “to the state‘s assertion of a baseless motive” and for failing to request the trial court to provide the jury with accident and self-defense instructions.
{¶51} To prevail on an ineffective assistance of counsel claim, the appellant must show (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced his defense so as to deprive him of a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006–Ohio–5084, 854 N.E.2d 1038, ¶205, citing Strickland v. Washington, 466 U . S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, an appellant must show that counsel‘s performance fell below an objective level of reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶95. To establish prejudice, an appellant must show a reasonable probability exists that, but for the alleged errors, the result of the proceeding would have been different. Id. “A defendant‘s failure to establish one prong of
{¶52} We already determined that evidence regarding Clay‘s alleged motive did not affect the outcome of the trial. Thus, any alleged deficient performance in failing to object to it did not affect the outcome of the trial. Consequently, we reject Clay‘s argument that trial counsel was ineffective in that regard.
{¶53} Additionally, we already determined that an accident instruction would not have affected the outcome of the trial in our plain error discussion. Thus, Clay cannot show that counsel‘s alleged deficiency in failing to request an accident instruction affected the outcome of the trial.
{¶54} Moreover, trial counsel‘s decision on whether to request a self-defense instruction ordinarily is a matter of trial strategy that an appellate court will not second-guess. State v. Carlisle, 2nd Dist. Montgomery No. 22970, 2009-Ohio-2004, ¶40 (determining that trial counsel made tactical decision to withdraw self-defense instruction request and instead proceed with accident theory); State v. Johnson, 10th Dist. Franklin No. 08AP-652, 2009-Ohio-3383, ¶62 (concluding that “trial counsel‘s decision to forgo self-defense and instead present an accident defense to the jury was a sound, strategic decision” when defendant‘s testimony is inconsistent with self-defense); State v. Branche, 10th Dist. Franklin No. 01AP-523 (Mar. 28, 2002). In Branche, for instance, the court determined that trial counsel‘s decision to forgo a self-defense instruction was a matter of sound trial strategy. The court explained:
“In the present case, defendant‘s theory at trial was that the shooting was accidental. Ohio courts have held that the defenses of accident and self-defense are mutually exclusive. State v. Burns (Aug. 3, 2000), Cuyahoga App. No. 69676, unreported. In State v. Barnd (1993), 85 Ohio App.3d 254, 260, 619 N.E.2d 518, the court noted that the defenses of accident and self-defense are ‘inconsistent by definition,’ as accident involves ‘the denial of a culpable mental state and is tantamount to the defendant not committing an unlawful act,’ whereas a defendant claiming self-defense ‘concedes he had the purpose to commit the act, but asserts that he was justified in his actions.’ Here, while defendant testified that she reached for the gun to hit [the victim], defendant maintained throughout her testimony that the killing was an accident, based upon her claim that the gun inadvertently fired when [the victim] grabbed at her hand. Defendant specifically denied any intent to fire the weapon at [the victim] to protect herself. Thus, even if trial counsel had requested an instruction on self-defense, the trial court could have concluded, under the facts, that such an instruction was not warranted.”
{¶55} Similarly, Clay continually maintained throughout the trial that he did not intend to shoot any of the victims but that the dog made the weapon accidentally discharge. Trial counsel apparently made a tactical decision to proceed with an accident theory instead of self-defense. Thus, trial counsel‘s decision not to request a self-defense instruction did not amount to deficient performance. State v. Shepherd, 8th Dist. Cuyahoga App. No. 97962, 2012-Ohio-5415, ¶48 (concluding that trial counsel not ineffective for failing to request self-defense instruction when self-defense inconsistent with defendant‘s theory that he did not shoot victim).
{¶56} Furthermore, even if Clay‘s trial counsel had requested a self-defense instruction, the trial court would have been fully justified in refusing to give the instruction due to Clay‘s assertion that he had no intent to shoot anyone and that the shooting was an accident. Thus, any alleged deficiency in failing to
VII.
SENTENCE
{¶57} In his fifth assignment of error, Clay argues that his sentence is contrary to law. In particular, he asserts that the trial court erred by failing to set forth the reasons for imposing more than the minimum sentence, by imposing consecutive sentences, and by failing to merge his convictions.
A.
STANDARD OF REVIEW
{¶58} This Court has continued to follow the Ohio Supreme Court‘s analysis set forth in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, when reviewing felony sentences, despite the enactment of H.B. 86, effective September 30, 2011.2 State v. Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶52. In Kalish, a plurality of the court stated:
“[A]ppellate courts must apply a two-step approach when reviewing felony sentences. First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.”
{¶59} However, the Eighth District has rejected the Kalish analysis when reviewing felony sentences imposed under H.B. 86. State v. Brown, 8th Dist. Cuyahoga No. 99024, 2013-Ohio-3134, ¶67; State v. A.H., 8th Dist. No. 98622, 2013-Ohio-2525, ¶ 7; State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 10. As the Brown court explained:
“This court no longer applies the abuse of discretion standard of State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124 * * *, when reviewing a felony sentence. State v. A.H., 8th Dist. No. 98622, 2613–Ohio–2525, ¶7. Instead, we follow the standard of review set forth in
R.C. 2953.08(G)(2) , which provides in relevant part:The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing under
R.C. 2929.11 as well as the seriousness and recidivism factors listed inR.C. 2929.12 , properly applies postrelease control and sentences a defendant within the permissible statutory range. A.H. at ¶ 10, citing Kalish at ¶ 18.
{¶60} Clay does not allege that the trial court abused its discretion but instead asserts that his sentence is contrary to law. Therefore, we have no present need to decide whether to abandon the Kalish two-pronged approach in favor of the review adopted in Brown. Instead, because Clay limits his argument to whether his sentence is contrary to law, we limit our review likewise.
B.
MORE THAN THE MINIMUM
{¶61} We readily reject Clay‘s argument that the trial court erred by failing to set forth the reasons for imposing more than the minimum sentence for each felonious assault conviction. Contrary to Clay‘s suggestion that the court imposed more than the minimum sentence, the record shows that the trial court did not do that. Instead, the court imposed the minimum sentence of two years for each conviction.
C.
CONSECUTIVE SENTENCES
{¶62} Clay next asserts that the trial court erred by imposing consecutive sentences and presents “three challenges here to consecutive terms.” They are: 1) a general statutory prohibition against consecutive sentences, 2) merger under
1.
Felonious Assault Convictions
{¶63}
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶64}
“First, the trial court must ‘find’ that consecutive sentencing is necessary to protect the public from future crime or to punish the offender. Next, the trial court must ‘find’ that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. Finally, the trial court must ‘find’
that at least one of the following applies: (1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction imposed pursuant to R.C. 2929.16 ,R.C. 2929.17 , orR.C. 2929.18 , or while under postrelease control for a prior offense; (2) at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct; or (3) the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.In each step of this analysis, the statutory language directs that the trial court must “find” the relevant sentencing factors before imposing consecutive sentences.
R.C. 2929.14(C)(4) . A trial court is not required to use “talismanic words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st Dist. No. C000148, 2000 Ohio App. LEXIS 5455 *10, 2000 WL 1732335 (Nov. 24, 2000). But it must be clear from the record that the trial court actually made the findings required by statute. See State v. Pierson, 1st Dist. No. C–970935, 1998 Ohio App. LEXIS 3812, 1998 WL 515962 (Aug. 21, 1998). A trial court satisfies this statutory requirement when the record reflects that the court has engaged in the required analysis and has selected the appropriate statutory criteria. See State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999); see also State v. Brewer, 1st Dist. No. C–000148, 2000 Ohio App. LEXIS 5455 *11, 2000 WL 1732335 (Nov. 24, 2000).”
{¶65} Although the trial court referred to the statute in effect before H.B. 86, it nonetheless cited factors specified under
{¶66} Clay nevertheless asserts that under
Except as provided in division (B) of this section, division (C) of
section 2929.14 , or division (D) or (E) ofsection 2971.03 of the Revised Code , a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. * * * *.
{¶67} The statute clearly creates exceptions to the general rule that a sentence of imprisonment shall be served concurrently with any other term of imprisonment. Nothing in
2.
FIREARM SPECIFICATIONS
{¶68} Next, we consider whether the trial court erred by requiring Clay to serve the sentences imposed for the firearm specifications consecutively to one another and consecutively to the sentences imposed for the underlying felonious assault convictions. In resolving this question, several statutory provisions are relevant to our analysis.
{¶69}
{¶70}
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
{¶71} In State v. Isreal, 12th Dist. Warren No. CA2011-11-15, 2012-Ohio-4876, ¶73, the court recognized that
“[
R.C. 2929.14(B)(1)(g) ] carve[s] out an exception to the general rule that a trial court may not impose multiple firearm specifications for crimes committed within a single transaction. The mandatory language of the statute (“the court shall impose“) also indicates the General Assembly‘s intention that the defendant serve multiple sentences for firearm specifications associated with the enumerated crimes, such as murder or felonious assault. Had the Legislature intended a per se rule that sentences for firearm specifications must be served concurrent with one another, it could have stated as much. Or, the Legislature could have chosen not to codifyR.C. 2929.14(B)(1)(g) , which serves as an exception to the rule that multiple firearm specifications must be merged for purposes of sentencing when the predicate offenses were committed as a single criminal transaction.”
{¶72} Clay was convicted of two or more felonies that are specified in
{¶73} We further reject any argument that the trial court erred by requiring Clay to serve the firearm specification prison terms consecutively to the felonious assault prison terms.
{¶74} Having determined that the trial court did not err by requiring Clay to serve the firearm specification prison terms consecutively to one another and consecutively to Clay‘s felonious assault prison terms, we now sua sponte consider whether the trial court erred by imposing three-year prison terms for the firearm specifications. Normally, we would only consider issues that were raised on appeal; nonetheless, we have discretion to sua sponte notice plain error. State v. Durr, 4th Dist. Scioto No. 11CA3411, 2012-Ohio-4691, ¶26 (sua sponte recognizing plain error when trial court incorrectly stated that portion of offender‘s sentence was mandatory); State v. Lee, 4th Dist. Pickaway No. 10CA12, 2010-Ohio-6450, ¶19, quoting State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992) (observing that
{¶75} As we already stated, for a reviewing court to find plain error (1) there must be an error, i.e., “a deviation from a legal rule,” (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected “substantial rights,” i.e., it “must have affected the outcome of the trial.” Barnes, 94 Ohio St.3d at 27. In this case, all three circumstances exist and justify our decision to recognize plain error.
{¶76} The Supreme Court of Ohio has declared, “[j]udges have no inherent power to create sentences * * * [and lack] the authority to impose a sentence that is contrary to law.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶¶22–23. A sentence that is not authorized by law is void. See Fischer at ¶21-24 and State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶10. “‘The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.‘” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶12, quoting Romito v. Maxwell, 10 Ohio St.2d 266, 267–268, 227 N.E.2d 223 (1967).3 An appellate court has inherent authority to vacate a
{¶77} The firearm specification found in
{¶78} Here, the trial court imposed a mandatory three-year prison term pursuant to
{¶79}
{¶80} We recognize the sentencing error as plain error because all three requirements for application of the doctrine exist. There is an error: the trial court did not sentence Clay in accordance with
{¶81} Accordingly, we vacate the trial court‘s judgment sentencing Clay to mandatory three-year prison terms for the firearm specifications. We remand that portion of the trial court‘s judgment for re-sentencing in accordance with this opinion.
D. MERGER
{¶83}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
“The question of whether offenses should merge under
“‘Through a series of opinions the Supreme Court of Ohio has advised and re-advised lower courts on the difficult task of applying Ohio‘s multiple-count statute to determine which criminal convictions require merger.’ Delawder at ¶39. In the plurality decision of State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, the Court expressly overruled its then current test for merger. Under the new test, the trial court must first determine ‘whether it is possible to commit one
offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other.’ (Emphasis sic). Johnson at ¶48. If the offenses are so alike that the same conduct can subject the accused to potential culpability for both, they are ‘of similar import’ and the court must proceed to the second step. The court must then determine whether the offenses in fact were committed by the same conduct, i.e., committed as a single act with a single animus. Id. at ¶49. If so, merger is necessary. However, if the offenses resulted from separate acts or were performed with a separate animus, or if the commission of one offense will never result in the commission of the other, the offenses will not merge. Id. at ¶ 51.”
{¶84} Clay‘s three felonious assault charges stemmed from the same gunshot, but each charge involved a different victim. Ohio courts have routinely recognized that separate convictions and sentences are permitted when the same course of conduct affects multiple victims. State v. Franklin, 97 Ohio St.3d 1, 2002–Ohio–5304, 776 N.E.2d 26, ¶48 (finding the court could impose multiple punishments for aggravated arson as defendant “caused six offenses of dissimilar import because six different people were placed at risk” when defendant set one structure on fire); State v. Jones, 18 Ohio St.3d 116, 480 N.E.2d 408 (1985) (determining that defendant could be sentenced for two convictions of aggravated vehicular homicide, even though the convictions arose out of the same conduct, when the conduct resulted in the death of two individuals); State v. Crisp, 4th Dist. Scioto No. 10CA3404, 2012-Ohio-1730, ¶36 (finding that “[i]n situations where a defendant has knowledge that more than one victim could be harmed, courts have concluded there is a separate animus for each victim at risk“). Thus, “multiple sentences for a single act committed against multiple victims is permissible where the offense is defined in terms of conduct toward ‘another as such offenses are of dissimilar import; the import
{¶85} Because Clay‘s three felonious assault convictions involved three different victims, the imposition of multiple punishments does not offend double jeopardy principles or
{¶86} Accordingly, we overrule Clay‘s fifth assignment of error but sua sponte vacate the trial court‘s judgment imposing mandatory three-year prison terms for the firearm specifications and remand for resentencing on that issue.
F. CUMULATIVE ERROR
{¶87} In his sixth assignment of error, appellant contends that the cumulative nature of the errors deprived him of a fair trial.
{¶88} “Before we consider whether ‘cumulative errors’ are present, we must first find that the trial court committed multiple errors.” State v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶57, citing State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d 916 (1998). Because we have found that the trial court did not commit multiple errors, the cumulative error principle is inapplicable. State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775, ¶46. Accordingly, we overrule Clay‘s sixth assignment of error.
{¶89} We affirm the trial court‘s judgment, except that we vacate the portion of its judgment that imposed mandatory three-year prison terms for the firearm specifications and remand for re-sentencing on that issue.
JUDGMENT AFFIRMED IN PART,
VACATED IN PART,
AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART, VACATED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.