State v. Smith ( 2024 )

[Cite as State v. Smith, 2024-Ohio-1557.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
:
MARISSA GRACE SMITH, : Case No. 2023CA00063
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2022-
CR-2253
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 23, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE EUGENE D. O'BYRNE
Prosecuting Attorney 101 Central Plaza South, Suite 500
Stark County, Ohio Canton, Ohio 44702
By: VICKI L. DESANTIS
Assistant Prosecuting Attorney
110 Central Plaza South, Ste. 510
Canton, Ohio 44702-1413
Stark County, Case No. 2023CA00063 2
Baldwin, J.
{¶1} The appellant, Marissa Grace Smith, appeals her conviction and sentence
by the Stark County Court of Common Pleas. Appellee is the State of Ohio. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On December 1, 2022, the Stark County Grand Jury indicted the appellant
with one count of Murder, in violation of R.C. §2903.02(B), and one count of Felonious
Assault, in violation of R.C. §2903.11(A)(1).
{¶3} On December 9, 2022, the appellant pleaded not guilty.
{¶4} On April 27, 2023, the appellant filed a Motion to Compel Discovery
requesting the appellee to provide the police interviews of I.E., C.C., and A.S. The
appellant also filed a Motion in Limine to exclude the testimonies of I.E., C.C., and A.S.
since the appellee had not provided the recordings.
{¶5} On April 28, 2023, the appellant filed a Motion to Compel Discovery,
requesting the appellee to provide the recording of the interview of L.H.
{¶6} On May 4, 2023, the trial court held a hearing on the appellant’s motions.
The trial court granted the motions to compel and ordered the appellee to provide all of
the requested videos that had not yet been provided.
{¶7} On May 8, 2023, the matter proceeded to a jury trial. The appellee first
called T.B. to testify. T.B. testified that the victim, M.M., was her nephew and was born on
June 7, 2020. She also testified to M.M.’s character trait of peacefulness.
{¶8} Next, I.E., a fourteen-year-old, testified that on September 13, 2022, he
went to Wildwood Park with his old brother C.C., A.S., and the victim to hang out. Upon
Stark County, Case No. 2023CA00063 3
arriving at the park, a different group of juveniles approached them to start fighting. I.E.
identified some of the juveniles as J.F., J.B., and L.H. After the fight, the appellant got in
I.E.’s face and began to scream at him. In response, C.C. pushed the appellant. The
appellant then spat in C.C.’s face. Then, C.C. and A.S. spat in the appellant’s face. I.E.
testified that the appellant was not part of the initial altercation but came after. As I.E. and
his group started to leave, the appellant ran at them with a knife. The victim stepped in
front of his group, and the appellant stabbed M.M. in the chest. M.M. fell to the ground.
I.E. and A.S. went to get help while C.C. stayed with the victim. By the time police arrived,
the appellant, L.H., J.F., and J.B. were not at the scene.
{¶9} During I.E.’s testimony, the State played surveillance video from the water
treatment facility showing the boys walking away from the fight. I.E. identified the appellant
with the open switchblade running toward the boys as they left with an open knife.
{¶10} I.E. admitted he told police that no one touched the appellant, but that she
was shoved twice. He also could not identify the appellant in the courtroom as having
stabbed the victim.
{¶11} C.C. then testified that he was with the victim, A.S., and I.E. at Wildwood
Park on September 13, 2022. Once arriving at the park, C.C. said he saw J.F. with J.B.
J.F. gestured that he was reaching for a weapon, so they fought him. C.C. said the
appellant then ran up and got in his face, and he asked her to step back. The appellant
then got in I.E.’s face, and C.C. pushed her back. C.C., A.S., M.M., and I.E. began walking
away when the appellant ran at them, yelling. M.M. pushed I.E. out of the way and said
that he was not afraid to die. The appellant then stabbed M.M. in the chest. M.M. pulled
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the weapon out of his chest and fell to the ground. The appellant, J.F., and J.B. then ran
away.
{¶12} The State then called A.S. to testify. During his testimony, A.S. said he was
friends with C.C. and M.M. He knows I.E. through C.C. On September 13, 2022, he went
with C.C., I.E., and M.M. to Wildwood Park anticipating a fight. A.S. said that they found
the group they were supposed to be fighting, caught them, and beat them up. He then
walked away to leave the park when the appellant came over the hill yelling about her
boyfriend being beaten up. She ran back towards A.S. and his group with a knife and said
she was not afraid of them and would stab them. The victim then yelled at the appellant to
put the knife away and that if she was going to stab anyone, to stab him. The appellant
then stabbed the victim. The victim knocked the appellant’s arm away, pulled out the knife,
then fell to the ground. The appellant then ran away.
{¶13} Next, Officer Miller testified that he responded to the incident. Upon arriving
at the scene, the stab wound was no longer bleeding, and the victim appeared to be in
cardiac arrest. Officer Miller hooked the victim up to an AED, but the heart was not in a
shockable rhythm. The Officer spoke with I.E., C.C., and A.S. They acknowledged that
they saw the stabbing; however, they did not know the name of the person who did it. They
described the individual who stabbed the victim as a young female with braces.
{¶14} After interviewing the witnesses, Officer Miller recovered the knife from the
crime scene.
{¶15} Lieutenant Allensworth then testified that the witnesses were upset when
he arrived on the scene. He separated them and took their statements. He then went to
J.F.’s house to bring him to the police department for an interview. After the interview, he
Stark County, Case No. 2023CA00063 5
then went to the appellant’s house to take her into custody. He also testified that he took
initial oral statements from the witnesses without separating them.
{¶16} Detective Pilla then testified he was called into the scene of the incident. He
separated the witnesses and took their statements. During these interviews, L.H.’s name
was brought up. Detective Pilla, in an effort to gain more information, contacted the
School’s Resource Officer who is familiar with the students. The School Resource Officer
gave Detective Pilla the Appellant’s name and also J.F.’s name as someone who also
hangs around L.H.
{¶17} During L.H.’s interview, L.H. stated he left the park before anything
happened. However, upon reviewing security footage from the water treatment plant,
Detective Pilla noted that L.H. was present for the incident and returned for a second
interview. Detective Pilla then interviewed J.F.
{¶18} On cross-examination, Detective Pilla testified that during his interview of
L.H., L.H. claimed that the victim pulled the appellant toward him, alleging the stabbing
was an accident.
{¶19} Next, the School Resource Officer, Rachel Carosello, testified that she
provided the appellant’s name to law enforcement based on their description. Carosello
interviewed several juveniles in connection with the investigation. Carosello also testified
that C.C.’s initial account did not match that of the other boys, and C.C. then changed his
account.
{¶20} Dr. Galita, a forensic pathologist, then testified that the victim’s cause of
death was a .75-inch wound in his chest caused by a double-edged blade. Dr. Galita
identified the weapon collected at the scene to be consistent with causing the victim’s
Stark County, Case No. 2023CA00063 6
wound. Dr. Galita also testified that the victim had amphetamine and methamphetamine
in his system at the time of his autopsy.
{¶21} The State then rested its case.
{¶22} The appellant moved for an acquittal pursuant to Crim.R. 29. The trial court
denied the appellant’s motion.
{¶23} The appellant’s first witness was J.B. He testified he knew the appellant
through J.F. J.B. testified that the day prior to the incident, I.E.’s father was at the park
trying to get someone to fight I.E. J.F. fought I.E. and I.E.’s father eventually broke up the
fight. He then yelled that they would be back tomorrow to fight again. J.B. testified that as
they attempted to leave the park, a black car pulled up, and C.C. jumped out and started
to yell at them. J.B. testified that C.C. and four other boys started beating J.B. and J.F.
After the fight, J.B. testified he left the park to go to a friend’s house and did not see the
stabbing. J.B. testified that he, the appellant, and J.F. did not bring any weapons to the
park.
{¶24} J.F. then testified that he used to date the appellant, and they still talked.
He went to Wildwood Park on September 12, 2022, to fight I.E. I.E.’s father said that they
would be back the next day to fight again. J.F. testified that R. came to the park with J.F.
on September 13, 2022, to fight I.E.’s father. R. left before any fighting took place.
{¶25} J.F. testified he was carrying a knife that day. As J.F. and J.B. were leaving
the park, I.E. and three other boys got out of a car and started chasing J.F. and J.B. J.F.
said A.S. punched him ten times and slammed him into the ground, that C.C. beat up J.B.
first, then turned his attention to J.F. The appellant came over to where J.F. and J.B. were
and yelled at A.S. and C.C. The group then turned to the appellant. The group began to
Stark County, Case No. 2023CA00063 7
push and spit on the appellant. They also started to yell at L.H. J.F. then pulled his knife
out; the appellant took the knife from J.F. and ran to help L.H. J.F. said L.H. is a friend who
has Asperger’s Syndrome. As the appellant approached, the victim yelled that he was not
afraid of the knife and that he was going to kill the appellant. J.F. testified that the victim
grabbed the appellant and pulled her toward him, and that is when the knife went into the
chest. The appellant began to run toward J.F. and L.H. because the group now had the
knife.
{¶26} J.F., L.H., and the appellant then ran through the woods to a playground,
where they waited for a bit and then went home separately. He said the video from the
water treatment plant did not accurately depict what took place that day because it did not
show the entirety of what transpired.
{¶27} Next, Dr. Maneesha Pandey testified that she was a forensic pathologist.
She testified that a person holding the knife horizontally and colliding with another person
could have caused the injury.
{¶28} Finally, the appellant testified that on September 13, 2022, she missed the
bus home from school, so she walked to the park to wait for her grandmother to pick her
up. The appellant testified that she heard J.B. yell her name and call for help. She saw
C.C. beating up J.F., and J.B. was on the ground. She started shouting, asking what was
happening.
{¶29} The appellant testified that C.C. pushed her and then began walking toward
L.H. L.H. was yelling for help. J.F. removed his knife from his waistband. The appellant
took the knife from J.F. and asked how to open it. J.F. showed her, and the appellant ran
down the hill toward L.H. After yelling at the group that the police were on the way, the
Stark County, Case No. 2023CA00063 8
group backed away from L.H. and started to yell at her that they were going to kill her. The
victim grabbed the appellant, pulled her to him, and then she let go of the knife. She said
she fled with J.F. on J.F.’s bike, and L.H. ran away. She said she did not intend to stab
anyone; she only wanted to scare them away. The appellant said she did not know anyone
had died until her interview began.
{¶30} The next day, the jury returned a verdict of guilt of murder and felonious
assault.
{¶31} On May 22, 2023, the trial court held a sentencing hearing, and the
appellant was sentenced to a term of fifteen years to life in prison.
{¶32} The appellant filed a timely notice of appeal and raised the following three
assignments of error:
{¶33} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE CONVICTION MUST BE
REVERSED.”
{¶34} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”
{¶35} “III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HER RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE
OHIO CONSTITUTION.”
Stark County, Case No. 2023CA00063 9
I., II.
{¶36} In the appellant’s first and second assignments of error, the appellant
argues that her convictions were not based upon sufficient evidence and were against the
manifest weight of the evidence presented. We disagree.
STANDARD OF REVIEW
{¶37} The appellant challenges her convictions on both manifest weight and
sufficiency of the evidence grounds. Sufficiency of the evidence was addressed by the
Ohio Supreme Court in State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d
754:
The test for sufficiency of the evidence is “whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus, superseded by constitutional
amendment on grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,
684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a reasonable
doubt’ is proof of such character that an ordinary person would be willing to
rely and act upon it in the most important of the person’s own affairs” R.C.
2901.05(E). A sufficiency-of-the-evidence challenge asks whether the
evidence adduced at trial “is legally sufficient to support the jury verdict as
a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶219.
Stark County, Case No. 2023CA00063 10
{¶38} Thus, a review of the constitutional sufficiency of the evidence to support a
criminal conviction requires a court of appeals to determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
{¶39} Manifest weight of the evidence, on the other hand, addresses the
evidence’s effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678
N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated
by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668. The Court stated:
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics, but depends on its effect in inducing
belief.” (Emphasis added.) Black’s, supra, at 1594.
Id. at 387
{¶40} The Court stated further:
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “ ‘thirteenth juror’ ” and disagrees with the fact
finder’s resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102
S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio
Stark County, Case No. 2023CA00063 11
App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 (“The court,
reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether
in resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.”).
Id.{¶41} In addition, “[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of facts. * * *
{¶42} “If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
ANALYSIS
{¶43} R.C. §2903.02(B) states: “[n]o person shall cause the death of another as
a proximate result of the offender’s committing or attempting to commit an offense of
violence that is a felony of the first or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code.”
{¶44} R.C. §2903.11(A), in pertinent part states:
Stark County, Case No. 2023CA00063 12
No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s unborn[.]
{¶45} During its case-in-chief, the State played a video showing I.E., C.C., A.S.,
and the victim walking away from the fight. Moments later, it shows the appellant running
at the group of boys with an open knife in her hand.
{¶46} At trial, I.E. testified that he, the victim, C.C., and A.S. fought with J.F. and
J.B. on September 13, 2022. As I.E., C.C., and A.S. were leaving Wildwood Park after the
fight, the appellant ran up to the group with a knife and started screaming and threatening
the boys. The victim responded to the appellant, saying he was not afraid of her. She then
stabbed the victim in the chest and ran away. The victim then fell to the ground.
{¶47} C.C. then testified that on September 13, 2022, he was at Wildwood Park
with the victim. He saw J.F. motion as if he had a weapon on him, so they fought J.F. and
J.B. After the fight, C.C. testified he was walking away with I.E., the victim, and A.S. when
the appellant ran up and started yelling at them. C.C. pushed her back out of his face. The
victim then stepped in between and said he was not afraid to die. The appellant then
stabbed the victim. M.M. removed the knife from his chest and then fell to the ground. The
appellant then ran away with J.F. and J.B.
{¶48} A.S. also testified he went to Wildwood Park anticipating a fight. After the
fight, as he was leaving with the victim, the appellant ran toward them with a knife. She
was yelling at them for beating up her boyfriend. After being threatened by the appellant,
M.M. responded that he was not afraid of her or of being stabbed. At that point, she
stabbed him and then ran away. The victim removed the knife and fell to the ground.
Stark County, Case No. 2023CA00063 13
{¶49} The appellant also testified at trial that she was at Wildwood Park on
September 13, 2022. While there, J.F. was in the group calling for help. Upon reaching
J.F., who had been in a fight, she testified that she saw the victim, C.C., A.S., and I.E.
approaching L.H. The appellant took a knife from J.F., asked him how to open it, and then
she ran, yelling at the group. She said that upon arriving at the group, she was pushed
and spit on, the victim grabbed her and pulled her to him, and the knife accidentally went
into the victim’s chest. He then removed the knife, and she fled. The appellant also called
J.F. and J.B. to testify. Their testimony was consistent with the appellant’s testimony.
{¶50} We have thoroughly reviewed the trial proceedings in this case, and we find
that, after viewing all the evidence in a light most favorable to the prosecution, a rational
trier of fact could have found beyond a reasonable doubt that the appellant committed the
essential elements for the crimes with which she was charged. Furthermore, we cannot
say that the jury clearly lost its way and created such a manifest miscarriage of justice that
the appellant’s convictions must be reversed and a new trial ordered. We, therefore, find
that the appellant’s convictions were supported by sufficient evidence and were not against
the manifest weight of the evidence. Accordingly, the appellant’s first and second
assignments of error are overruled.
III.
{¶51} In the appellant’s third assignment of error, the appellant argues she was
deprived of effective assistance of counsel as her trial counsel failed to raise a self-defense
or defense of another claim and to object to improper character evidence of the victim’s
character. We disagree.
Stark County, Case No. 2023CA00063 14
STANDARD OF REVIEW
{¶52} The standard of review for ineffective assistance of counsel was set forth in
the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and was discussed by this court in Mansfield v. Studer, 5th Dist. Richland Nos.
2011-CA-93 and 2011-CA-94, 2012-Ohio-4840:
A claim of ineffective assistance of counsel requires a two-prong
analysis. The first inquiry is whether counsel’s performance fell below an
objective standard of reasonable representation involving a substantial
violation of any of defense counsel’s essential duties to appellant. The
second prong is whether the appellant was prejudiced by counsel’s
ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 133 S.Ct. 838 (1993);
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶53} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111,
129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).
{¶54} To show deficient performance, the appellant must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland at 688.
This requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Strickland at 687. Counsel also has a duty to bring to bear such skill and knowledge as
will render the trial a reliable adversarial process. Strickland at 688.
Stark County, Case No. 2023CA00063 15
Thus, a court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct. A convicted
defendant making a claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then determine whether,
in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance. In making that
determination, the court should keep in mind that counsel’s function, as
elaborated in prevailing professional norms, is to make the adversarial
testing process work in the particular case. At the same time, the court
should recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.
Id.In light of “the variety of circumstances faced by defense counsel
[and] the range of legitimate decisions regarding how best to represent a
criminal defendant,” the performance inquiry necessarily turns on “whether
counsel’s assistance was reasonable considering all the circumstances.”
Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all
points, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at
2064.
Stark County, Case No. 2023CA00063 16
Studer, supra, at ¶¶58-61. Even debatable trial tactics and strategies do not constitute
ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189(1980).
{¶55} Thus, in order to prevail on an ineffective assistance of counsel argument
the appellant must show both: 1) that his trial counsel’s performance fell below an
objective standard of reasonable representation involving a substantial violation of an
essential duty to the appellant; and, 2) that the appellant was prejudiced by such the
alleged ineffectiveness.
ANALYSIS
Self-Defense/ Defense of Another
{¶56} R.C. §2901.05(B)(1) provides:
(B)(1) A person is allowed to act in self-defense, defense of another, or
defense of that person’s residence. If, at the trial of a person who is accused
of an offense that involved the person’s use of force against another, there
is evidence presented that tends to support that the accused person used
the force in self-defense, defense of another, or defense of that person’s
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another, or
defense of that person’s residence, as the case may be.
{¶57} “A defendant is entitled to an instruction on self-defense when evidence has
been presented that tends to support the defendant acted in self-defense.” State v.
Holladay, 5th Dist. Stark No. 2023 CA 00021, 2023-Ohio-3577, citing State v. McCallum,
10th Dist. Franklin No.19AP-796, 2021-Ohio-2938, ¶38. “[Similar] to the standard for
Stark County, Case No. 2023CA00063 17
judging the sufficiency of the state’s evidence, if the defendant’s evidence and any
reasonable inferences about that evidence would allow a rational trier of fact to find all the
elements of a self-defense claim when viewed in the light most favorable to the defendant,
then the defendant has satisfied the burden.” State v. Messenger, 171 Ohio St.3d 227,
2022-Ohio-4562, 216 N.E.3d 653, ¶25, citing State v. Filiaggi, 86 Ohio St.3d 230, 247, 714
N.E.2d 867 (1999); State v. Robinson, 47 Ohio St.2d 103, 109-112, 351 N.E.2d 88 (1976).
“A defendant charged with an offense involving the use of force has the burden of
producing legally sufficient evidence that the defendant’s use of force was in self-defense.”
Id. at ¶25. However, “[a] bare assertion by the defendant that he acted in self-defense into
issue in the trial.” State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, 155
N.E.3d 1056, ¶47, quoting State v. Gideons, 52 Ohio App.2d 70, 73, 368 N.E.2d 67 (8 th
Dist.1977).
{¶58} In the case sub judice, counsel engaged in sound trial strategy by not raising
self-defense or defense of others to justify the appellant’s stabbing of M.M. These
defenses conflicted with the appellant’s testimony that her conduct did not lead to the
stabbing of the victim. Instead, the appellant argued that the stabbing was an accident
caused by the victim when he pulled the appellant toward him. She also submitted
testimony from J.B. and J.F. supporting her version of the facts. Accordingly, the appellant
has not shown that trial counsel’s performance by failing to request a self-defense or
defense of another jury instruction fell below an objective standard of reasonable
representation.
Failure to Object to Character Testimony
{¶59} Evid.R. 404(A)(2) states:
Stark County, Case No. 2023CA00063 18
{¶60} 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 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.
{¶61} In the case sub judice, the State’s first witness testified that the victim was
very compassionate. At this point in the trial, no testimony had been admitted that the
victim was the first aggressor. Therefore, the statement is objectionable under Evid.R.
404(A)(2). However, the appellant failed to show how this brief statement and trial
counsel’s failure to object to the statement affected the outcome of the trial. Indeed, trial
counsel’s failure to object could have been tactical. “Trial counsel is not ineffective for
choosing, for tactical reasons, not to pursue every possible trial objection.” State v. West,
5th Dist. Fairfield No. 16 CA 11, 2017-Ohio-4055, 91 N.E.3d 365, ¶102, citing State v.
Raypole, 12th Dist. Fayette No. CA2014-05-009, 2015-Ohio-827, ¶24. This is because
“[o]bjections tend to disrupt the flow of a trial and are considered technical and bothersome
by a jury.” State v. Steele, 12th Dist. Butler No. CA2003-11-276, 2005-Ohio-943, ¶100,
citing State v. Hill, 75 Ohio St.3d 195, 211, 661 N.E.2d 1068 (1996). Especially with such
brief testimony, trial counsel may not have wanted to call attention to the statement.
Furthermore, the Supreme Court of Ohio held that “the failure to make objections is not
alone enough to sustain a claim of ineffective assistance of counsel. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶103.
Stark County, Case No. 2023CA00063 19
{¶62} Accordingly, the appellant’s claim of ineffective assistance of counsel
regarding trial counsel’s failure to object to improper character testimony is overruled.
{¶63} Therefore, the appellant’s third assignment of error is overruled.
CONCLUSION
{¶64} For the forgoing reasons, the judgment of the Court of Common Pleas,
Stark County, Ohio, is hereby, affirmed.
By: Baldwin, P.J.
Gwin, J. and
Wise, John, J. concur.