STATE OF OHIO v. TAWANN SMITH
No. 113455
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 25, 2024
2024-Ohio-2811
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 25, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-681060-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Mason P. McCarthy, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, Joseph C. Patituce, and Megan M. Patituce, for appellant.
SEAN C. GALLAGHER, J.:
{¶ 1} Tawann Smith appeals his conviction for felonious assault along with two attendant firearm specifications. The conviction arose from his shooting the victim during a fistfight between the victim and Smith and his brother. Smith was
{¶ 2} On the day of the shooting, recorded from multiple angles by security cameras installed inside the gas station in which the incident took place, the victim was at the counter buying various sundries. A line formed behind him with Smith entering while the victim was finishing the transaction. The line ended at the store‘s entrance. The victim testified he saw Smith enter but paid him no mind. The two were onсe friends. A falling out occurred about a year before the shooting over the victim contacting Smith‘s girlfriend. As the victim exited the store, he had to pass Smith. The video does not depict any obvious physical contact between the two at that time, but the victim thought he may have stepped on Smith‘s foot under the camera‘s viewing angle. Smith immediately turned and took at least two steps toward the victim, who had exited the store and had his back toward Smith at the time. After a brief, albeit animated, discussion, Smith aggressively pushed the victim and they both began shoving and wrestling with each other. Other patrons cleared the area. Smith admitted to starting the fight by pushing the victim, although he claimed the victim was verbally aggressive. Shortly after the two were
{¶ 3} Smith, who was armed, dropped his handgun during the initial stage of the fight. When his brother stepped in and started fighting with the victim, Smith picked up the handgun and fired at the victim as he was engaged with Smith‘s brother. The victim was wounded in the stomach. The responding officer found the victim with his intestine hanging оut and administered emergency aid until the ambulance arrived. He survived, but a significant incision from chest to navel was needed to repair the damage caused by the bullet. The victim was unarmed at the time of the fight, a fact that Smith retrospectively conceded in his trial testimony.
{¶ 4} At trial, Smith presented text messages from the victim that were sent eight months before the shooting, around the time the falling out between the two occurred. In those messages, which only included the victim‘s side of the messаging, several comments were made about the two fighting to resolve their dispute. Although there was mention of a firearm, Smith testified to not understanding that specific statement at trial. There appears to have been no contact between the two until the shooting.
{¶ 5} Smith claimed that as soon as he saw the victim in the gas station, he was in fear for his life in light of the earlier texted threats. He nonetheless remained in the store while the victim was finalizing his purchase. According to Smith, the
{¶ 6} The video recording of the fight, as viewed by the jury, demonstrates that Smith had possession of his handgun at a distance from the victim, who was then fighting with Smith‘s brother at the time the shot was fired. Smith‘s brother and the victim, although wrestling and throwing unаimed punches, did not appear to be getting the better of the other. After the shooting, the fight ended. Smith and his brother fled the store. Smith returned to retrieve his hat, which had fallen off during the tussle. At trial, he claimed to be looking for his car key, which he found in his рocket. In response to the victim‘s question about being shot, Smith said he
{¶ 7} In the sole assignment of error, Smith claims his conviction, entered following a jury trial, is against the weight of the evidence because he and his brother‘s testimony established that he acted in self-defense.
{¶ 8} When evaluating a claim that a jury verdict is against the weight of the evidence, appellate courts “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 we must reverse the conviction and order a new trial.” State v. Wilks, 2018-Ohio-1562, ¶ 168, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); State v. Jordan, 2023-Ohio-3800, ¶ 17. Reversing a conviction based upon the weight of the evidence occurs “only in the exceptional case in which the evidence weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
{¶ 9} In order to disprove the claim of self-defense, the State must present evidence “beyond a reasonable doubt that the defendant: (1) was at fault in creating the situation giving rise tо the affray; (2) did not have reasonable grounds to believe or an honest belief that he or she was in imminent danger of bodily harm; or (3) violated a duty to retreat or avoid danger.” State v. French, 2024-Ohio-1256, ¶ 25 (1st Dist.), quoting State v. Gibson, 2023-Ohio-1640, ¶ 11 (1st Dist.). The first and third elements are straightforward and are applied as written. As to the second
{¶ 10} Smith‘s argument that the trier of fact lost its way in rejecting his assertion of self-defense is solely focused on subjective beliefs to the exclusion of the State‘s evidence. It is well settled that “a conviction is not against the manifest weight оf the evidence simply because the [trier of fact] rejected the defendant‘s version of the facts and believed the testimony presented by the state.” State v. Jallah, 2015-Ohio-1950, ¶ 71 (8th Dist.), quoting State v. Hall, 2014-Ohio-2959, ¶ 28 (4th Dist.); see also State v. Kouame, 2020-Ohio-3118, ¶ 53 (8th Dist.); State v. Agnew, 2024-Ohio-874, ¶ 25 (12th Dist.). This is because the trier of fact is free to believe all, some, or none оf the evidence presented by the State or defense at trial. State v. Smith, 2010-Ohio-4006, ¶ 16 (8th Dist.). We cannot conclude that the jury lost its way.
{¶ 11} The State presented evidence that the victim was not armed, much less brandishing a firearm, at the time of the shooting and was not doing anything other than engaging with Smith and his brother‘s belligerence, which was limited to fists before Smith used his deadly weapon. Importantly, the video demonstrated, and Smith conceded, that he started the physical altercation by pushing the victim at a time when the two were merely engaged in a heatеd conversation. Moreover,
{¶ 12} Inasmuch as Smith relies on the fact that the victim may have stepped on his shoe or “brushed his shoulder” as evidence that the victim was the initial aggressor, those acts in and of themselves do not constitute the start of what became a two-on-one fistfight after Smith aggressively confronted and then pushed the victim. See State v. Sekic, 2011-Ohio-3978, ¶ 14 (8th Dist.) (“Ohio courts have long recognized that a рerson cannot provoke assault or voluntarily enter an encounter and then claim a right of self-defense.“), quoting State v. Nichols, 2002-Ohio-415, (4th Dist.); see also State v. Walker, 2021-Ohio-2037, ¶ 19 (“Generally, a defendant, having willingly advanced toward a volatile situation cannot rely on the affirmative defense of self-defense.“). The video suggests that had Smith not advanced toward and confronted the victim, no violence would have ensued. The victim was leaving the store when stopped and confronted by Smith. Having willingly advanced to engage in physical combat with someone he subjectively claimed possessed a weapon, Smith cannot rebut the State‘s proof that he was anything but the initial aggressor. See Sekic at ¶ 15. Regardless, even taking into consideration Smith‘s subjective belief that the two men wеre armed before Smith initiated the physical fight, this is best characterized as mutual combat between two armed opponents, which generally does not support a claim of self-defense. See State v. Daley, 2020-Ohio-4390, ¶ 48 (10th Dist.); State v. Jacinto, 2020-Ohio-3722, ¶ 116-117 (8th Dist.).
{¶ 14} A conviction will not be reversed as being against the manifest weight of the evidence except in an “exceptional case in which the evidence weighs heavily against the conviction.” Thompkins, 78 Ohio St.3d at 387. This is not that case. The primary evidence introduced against Smith was the video recordings of the entire altercation. The jury was free to draw its own conclusions as to what actually occurred. State v. Scales, 2024-Ohio-2171, ¶ 31 (8th Dist.). And although there are arguably some inconsistencies in the State‘s evidence, none of the inconsistencies
{¶ 15} The conviction is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Cаse remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and EMANUELLA D. GROVES, J., CONCUR