NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0852n.06
Filed: December 14, 2007
No. 06-4059
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DARELL NASH, SR., )
)
Petitioner-Appellee, )
)
v. )
) ON APPEAL FROM THE UNITED
MICHELLE EBERLIN, Warden, ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
Respondent-Appellant. )
)
)
Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
ROGERS, Circuit Judge. In this case, the Ohio courts determined that defendant’s
felonious assault conviction was not against the manifest weight of the evidence, which necessarily
implied a finding that his conviction was also supported by sufficient evidence. The federal district
court below — on remand from a previous appeal to this court — granted habeas relief on grounds
of insufficient evidence as to one element of the crime of felonious assault. Because the state
court’s determination was an unreasonable application of clearly established federal law, we affirm.
In the previous appeal, we vacated the district court’s grant of Nash’s petition for a writ of
habeas corpus because the district court relied on the state appellate court’s statements of fact rather
than reviewing the trial transcript. See Nash v. Eberlin, 437 F.3d 519 (6th Cir. 2006). After we
No. 06-4059
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remanded the case with instructions to review the state trial transcript, the district court again
granted Nash’s petition.
The factual background of this case was set out in our previous opinion as follows:
On December 11, 2001, Connie Nash (“Connie”) received a call at the nursing home
where she worked from her husband's girlfriend. After finishing her shift at work,
Connie came home and found Nash and a friend in the Nashes’ kitchen playing
cards. Connie told Nash's friend to leave so that she could speak with Nash. As he
was standing up, Nash bumped Connie with his chair, and she “started swinging on
him.” Nash got out of his chair and grabbed Connie, and they began to fight. She
tripped over a highchair and fell down. The Nashes' adult son, Darell Nash, Jr.
(“Darell Jr.”), and their nephew, William Jeter, heard the noise and came up from the
basement; they found Connie and Nash screaming at each other.
Nash ran upstairs and then returned with a .9-millimeter handgun.1 The handgun was
loaded. Upon seeing the gun, Darell Jr. grabbed Nash, which caused the gun to fire
into the ground. Connie went into the Nashes' daughter's room, and Nash followed
her. Darell Jr. again grabbed Nash, and the gun fired into the wall.2 Nash then put
the gun away upstairs and left the house in his car.
Connie called the police, who came to the Nashes’ house. Nash called the house
while the police were there, and a detective listened in while Darell Jr. spoke with
Nash on the phone. According to the detective, Nash stated, “[S]he did it this time.
1
At this point in the narrative, Connie's testimony at trial directly contradicted the original statement she gave
to the police on December 11, 2001. Her trial testimony was based on a letter she sent to the police on January 25, 2002,
which she claimed to have written to “tell the truth about what really happened.” She testified that Nash walked away
from her after they were fighting, and she then left the house with the intention of breaking the window of his car.
Connie stated that she could not find a brick or rock in the back, so she proceeded to the front of the house to retrieve
a tire iron from her truck. At that point, she said that she heard Nash's car start and that he then left. W hen confronted
at trial with her original statement to the police, Connie explained that she was upset with Nash and she wanted to hurt
him at the time of the incident, but that she was telling the truth in her January 2002 letter.
2
In the previous appeal, the State asserted that at this point, “the gun discharged in the direction of Nash's
wife,” and the State's attorney explained that evidence of this fact was presented to the jury. In making its original
habeas decision, the district court was not able to evaluate the accuracy of that assertion because it did not have a copy
of the full state-court trial transcript before it. Therefore, we remanded the case with instructions to review the entire
trial record. A review of the full record, however, does not indicate that the gun discharged in the direction of Nash’s
wife.
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You can tell her she doesn't have a job any longer because I'm going to F'ing kill
her.” State v. Nash, No. 2002CA00106, 2003 WL 139783, at *1 (Ohio Ct. App. Jan.
13, 2003). Nash also asked Darell Jr. “whether Connie had ‘cool[ed] down yet so
that he could come home and talk things over.’” Id.
Nash gave a statement to the police in which he said “that he went upstairs and got
the gun in order to scare his wife.” Id. At trial, however, he testified that “his
‘intention was to take the gun out of the house.’” Id. “[Nash], during his testimony,
also testified that the handgun went off accidentally and denied making the threats
that the Detective overheard him making during the telephone call.” Id.
Nash was indicted by the Stark County Grand Jury for improperly discharging a
firearm at or into a habitation or school safety zone and for knowingly causing or
attempting to cause physical harm to Connie Nash by means of a deadly weapon or
dangerous ordnance. Both charges had a firearm specification. On March 5, 2002,
a jury found Nash guilty on both counts, and he was subsequently sentenced to a
total of five years of incarceration. Nash appealed to the Fifth District Court of
Appeals of Ohio, which overturned his conviction for discharging a firearm at or into
a habitation or school safety zone3 and upheld his conviction for felonious assault.
Nash, 2003 WL 139783, at *3. With regard to the felonious assault charge, the state
appellate court held that Nash’s conviction was not against the manifest weight of
the evidence:
Upon our review of the record, we find that appellant acted
knowingly when, after arguing with his wife, he went upstairs to
retrieve the gun. As is stated above, appellant told the police that he
had retrieved the same in order to scare his wife. We concur with
appellee that “[r]eturning to the argument in this situation gives rise
to a probable result that the gun may go off.”
3
Nash’s conviction was based upon the following statute:
(A) No person, without privilege to do so, shall knowingly do any of the following:
(1) Discharge a firearm at or into an occupied structure that is a permanent or
temporary habitation of any individual ....
O H IO R EV . C O D E § 2923.161. The state appellate court concluded that conviction pursuant to § 2923.161 was against
the manifest weight of the evidence because “there is no evidence that appellant discharged his firearm at or into a
habitation.” Nash, 2003 W L 139783, at *3 (emphasis added).
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Id. One judge dissented in part, stating that the facts herein do not support a
conviction of felonious assault.” Id. at *4. (Hoffman, P.J., dissenting in part). Nash
filed an appeal with the Ohio Supreme Court, which denied leave to appeal because
the case did not involve a “substantial constitutional question.” J.A. at 124 (Entry).
On February 3, 2004, Nash filed a petition for habeas relief in federal district court
pursuant to 28 U.S.C. § 2254. The habeas petition — which Nash filed pro se —
listed one ground for relief: “Felonious assault conviction was against the manifest
weight of the evidence.” J.A. at 8 (Habeas Pet.). The State filed a return of writ on
June 21, 2004, arguing that Nash did not state a cognizable claim for federal habeas
review because a manifest-weight-of-the-evidence claim is a matter of state law.
The State further asserted that even if construed as a claim based on sufficiency of
the evidence, Nash should still not prevail. On July 27, 2004, Nash filed a traverse
to the State's return of writ in which he raised the issue of sufficiency of the
evidence; he argued that his rights under the Fourteenth Amendment were violated
when he was convicted of felonious assault without proof of intent.
A magistrate judge filed a report on November 5, 2004, recommending that habeas
relief be denied. On April 1, 2005, the district court granted Nash's § 2254 petition.
The district court ordered the State to release Nash from custody “within 30 days of
this order.” J.A. at 199(J.). Although Nash's manifest-weight-of-the-evidence claim
did not raise an issue of federal law, the district court liberally construed his petition
to raise a claim based on sufficiency of the evidence. The district court concluded
that “[e]ven viewing the facts in the light most favorable to the prosecution, a
rational trier of fact could not conclude beyond a reasonable doubt that the petitioner
knowingly caused or attempted to cause physical harm to his wife or to anyone else.”
J.A. at 195 (Op.).
Nash, 437 F.3d at 520-22.
On Nash’s first appeal, we held that a review of the entire trial transcript was needed because
the State made highly significant factual assertions that did not appear in the state appellate court’s
findings of fact, which the district court had relied upon instead of the full trial record. See Nash,
437 F.3d at 523. On remand, the district court reviewed trial transcript and again granted Nash’s
petition for a writ of habeas corpus. The district court held that a rational trier of fact could not
conclude beyond a reasonable doubt that Nash knowingly caused or attempted to cause physical
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harm to his wife because there is no evidence that he pointed the gun at his wife or threatened her
directly.
As a threshold matter, we first determine that Nash did not procedurally default on his
sufficiency of the evidence claim by not presenting it to the Ohio state courts.4 Under normal
circumstances, habeas relief can only be sought for claims that have been ruled upon in state court.
See 28 U.S.C. § 2254(b)(1)(A). On appeal to the Fifth Circuit Court of Appeals of Ohio, Nash
argued that his conviction for felonious assault was against the manifest weight of the evidence, but
he did not literally argue that there was insufficient evidence to support his conviction.
Nevertheless, the sufficiency of the evidence issue was adequately passed upon by the Ohio courts
because the determination by the Ohio Court of Appeals that the conviction was supported by the
manifest weight of the evidence necessarily implies a finding that there was sufficient evidence. The
Ohio Court of Appeals, for instance, has explained that “‘[b]ecause sufficiency is required to take
a case to the jury, a finding that a conviction is supported by the weight of the evidence must
necessarily include a finding of sufficiency.’ Thus, a determination that a conviction is supported
by the weight evidence will also be dispositive of the issue of sufficiency.” State v. Lee, 814 N.E.2d
112, 115 (Ohio Ct. App. 2004) (citations omitted). Therefore, the district court properly entertained
4
Nash’s habeas petition actually argues that his conviction was against the manifest weight of the evidence, not
that it was supported by insufficient evidence. Even though a federal court is only allowed to review issues of federal
law in a habeas proceeding, see 28 U.S.C. § 2254(a), and a manifest-weight-of-the-evidence argument is a state-law
argument, we interpret Nash’s argument to be a sufficiency of the evidence claim because the law calls for the liberal
and active construction of pro se claims for relief “to encompass any allegation stating federal relief.” Franklin v. Rose,
765 F.2d 82, 85 (6th Cir. 1985) (quoting White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976)). As the following analysis
demonstrates, the state court’s decision on the manifest weight of the evidence subsumed a decision on the sufficiency
of the evidence. Therefore, we interpret Nash’s petition as a complaint that the state court erroneously found his
conviction to be supported by sufficient evidence.
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Nash’s sufficiency of the evidence claim because it has been effectively presented to the Ohio courts
and was decided by the Ohio Court of Appeals.
A conviction is not supported by sufficient evidence if a rational trier of fact could not have
found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979). In this habeas proceeding, however, we are not allowed to conduct a de novo
review of the Ohio state court’s application of that rule. Instead, we must review its sufficiency of
the evidence decision under the highly deferential standard set by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under that statute, Nash can only be granted habeas relief
if the Ohio Court of Appeals made an unreasonable application of the Jackson standard. See 28
U.S.C. § 2254(d)(1); Getsy v. Mitchell, 495 F.3d 295, 315-316 (6th Cir. 2007) (en banc). Thus, it
is not our duty to determine whether a rational trier of fact could have found that Nash committed
the essential elements of felonious assault beyond a reasonable doubt. That was the job of the Ohio
Court of Appeals. The task for this court is to determine whether it was objectively unreasonable
for the Ohio Court of Appeals to conclude that a rational trier of fact, after viewing the evidence in
the light most favorable to the state, could have found that Nash committed the essential elements
of felonious assult beyond a reasonable doubt. See McFowler v. Jaimet, 349 F.3d 436, 447 (7th Cir.
2003). Applying even this very deferential standard mandated by AEDPA, we conclude that Nash’s
conviction for felonious assault cannot stand.
Nash was convicted under Ohio Rev. Code § 2903.11(A)(2), which prohibits an individual
from causing or attempting to cause physical harm to another by means of a deadly weapon.
Because no one was injured in this case, Nash could only be convicted under the “attempt to cause
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physical harm” variation of felonious assault. In order to convict under that provision, a jury must
find beyond a reasonable doubt that the defendant knowingly engaged in some overt act directed
toward executing or accomplishing the assault through the use of a deadly weapon. See State v.
Kline, 464 N.E.2d 159, 166 (Ohio Ct. App. 1983). As the district court correctly noted, the evidence
in this case establishes nothing more than that Nash brought out the gun to scare his wife, that he
followed his wife into their daughter’s room on the same floor, and that the gun went off while Nash
struggled with his son. Based on those facts, it was objectively unreasonable for the Ohio Court of
Appeals to find that a rational trier of fact could be convinced beyond a reasonable doubt that Nash
knowingly attempted to cause physical harm to anyone through the use of a deadly weapon.
Under Ohio law, it is clear that bringing a gun to an argument and having it go off at a
downward trajectory during a struggle, without the gun ever having been pointed at anyone, is not
a felonious assault. Indeed, the Ohio Supreme Court has squarely stated that the act of pointing a
gun at someone, without further evidence of the actor’s intention, is not sufficient evidence for a
felonious assault conviction. State v. Brooks, 542 N.E.2d 636, 642 (Ohio 1989). Later, the Ohio
Supreme Court analyzed what type of further evidence was required under Brooks. State v. Green,
569 N.E.2d 1038, 1040-41 (Ohio 1991). The Ohio Supreme Court restated that “[t]he act of
pointing a deadly weapon at another, without additional evidence regarding the actor’s intention,
is insufficient to convict a defendant of the offense of ‘felonious assault.’” Id. at 1041. In Kline, the
Ohio Court of Appeals ruled in a case that involved a scuffle, in which there was some evidence that
the gun was pointed at someone, that there was not sufficient evidence of felonious assault, although
the lesser offense of aggravated menacing might have been shown. See Kline, 464 N.E.2d at 165-
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66; see also State v. Pack, 674 N.E.2d 1263, 1265-66 (Ohio Ct. App. 1996) (reversing conviction
for felonious assault because jury had been told by prosecutor that recklessness was sufficient for
conviction, where defendant had pointed a loaded gun at someone’s chest after firing shots into the
floor and ceiling). If there was insufficient evidence of felonious assault in such cases where a gun
was pointed at someone, then the Ohio Court of Appeals could not reasonably determine that a
rational trier of fact could have found beyond a reasonable doubt that a felonious assault was
committed in this case, in which the evidence does not indicate that the gun was pointed at anyone.
The Ohio Court of Appeals opinion to which we owe deference in this case was concerned
primarily with the reasons for reversing the conviction for discharging a firearm into a home. Only
two paragraphs address the sufficiency of the evidence for felonious assault. One paragraph restated
Ohio law, and the other paragraph reasoned as follows:
While appellant argues that there is no evidence that he knowingly attempted to
cause physical harm to his wife, we disagree. Upon our review of the record, we
find that appellant acted knowingly when, after arguing with his wife, he went
upstairs to retrieve the gun. As is stated above, appellant told the police that he had
retrieved the same in order to scare his wife. We concur with appellee that
“[r]eturning to the argument in this situation gives rise to a probable result that the
gun may go off.” In short, upon our review of the record, we cannot say that the
jury, by convicting appellant of felonious assault, lost its way so as to create a
manifest miscarriage of justice.
State v. Nash, 2003 WL 139783, *3 (Ohio App. 5 Dist. 2003). There are two potential ways to read
this analysis — as a reinterpretation of Ohio law, or as a finding that the existing requirements for
a felonious assault conviction were satisfied in this case. The former cannot be the correct
interpretation. Where the elements of a state crime are sufficiently clear as a matter of state law, we
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cannot automatically uphold a conviction with insufficient proof of one of the elements on the
theory that the state court in the very case has eliminated that element as a requirement. It would
undermine the federal sufficiency-of-proof requirement to do so.
Here the Ohio Court of Appeals did not explicitly purport to reinterpret the contours of Ohio
law. Such a reinterpretation of the law would have amounted to a major change in Ohio law. It is
unlikely that such a change would have been intended by the brief analysis of the intermediate
appellate court in this case. Under existing Ohio law, it is clear that going upstairs to retrieve a gun
cannot establish the necessary intent to meet the requirements of felonious assault. Nor can
returning to the argument constitute an attempt to injure someone under the clear contours of Ohio
felonious assault law. Ohio law clearly draws the line with respect to “attempt to cause physical
harm” felonious assault much closer to intentionally shooting at someone. In previous cases
upholding felonious assault convictions involving a discharged gun, the courts have explicitly relied
on the fact that the gun was intentionally fired in the direction of another individual. See, e.g., State
v. Salinas, 706 N.E.2d 381, 389-91 (Ohio Ct. App. 1997); State v. Owens, 678 N.E.2d 956, 958
(Ohio Ct. App. 1996); State v. Gregory, 628 N.E.2d 86, 90-91 (Ohio Ct. App. 1993). The decision
by the Ohio Court of Appeals can therefore only be read as determining that Nash’s going to the
argument with a loaded gun was sufficient evidence that Nash knowingly shot at his wife. So
construed, however, the analysis is not a reasonable application of the federal requirement of proof
beyond a reasonable doubt because the evidence does not support such a conclusion. While Ohio
courts have the power to define the elements of state crimes, they cannot constitutionally permit
conviction without sufficient proof of an element of the crime so defined.
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The State on this appeal, however, makes an argument that the record does permit a finding
that Nash fired the gun in the direction of his wife. The Ohio Court of Appeals, it should be noted,
did not rely on this theory, but rather reasoned that Nash’s merely going to the argument with a gun
provided sufficient evidence that a felonious assault had been committed. In any event, there is no
direct evidence in the record that can fairly be read to support a finding that Nash intentionally fired
the gun in the direction of his wife. The only pieces of evidence to address the direction in which
the gun was fired — i.e., the police statement given by Billy Jeter and the testimony and police
statements given by Darell Jr., and Nash himself — all indicated that the gun was pointed downward
each time it discharged. LaDonna Nash, who witnessed only the second shot, testified that the gun
was pointed downward when it was discharged for the second time. Additionally, all of the
testimony from eyewitnesses indicated that the gun was accidentally discharged. The State argues
that the following facts permit a reasonable juror to conclude that the gun was intentionally fired at
Connie: (1) the second shot was fired in the direction of the doorway of LaDonna’s room, and (2)
Connie exited through that doorway at some point. The evidence, however, appears not even
facially to support the theory. Exhibits 1K and 7G, found on pages 614 and 616 of the Joint
Appendix, show that: (1) the second bullet struck a wall that was perpendicular to the wall
containing the door in LaDonna’s room, and (2) the bullet entered the perpendicular wall almost the
full length of that wall away from the doorway, near the wall opposite the doorway. (Exhibit 7G,
in particular, shows that the bullet entered the perpendicular wall very near the wall opposite the
doorway.)
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By allowing the conviction to stand, the Ohio Court of Appeals effectively permitted
conviction without proof beyond a reasonable doubt of one of the elements of the offense, namely
that Nash knowingly attempted to cause physical harm to another. Such an application of the
Jackson standard was objectively unreasonable.
For the foregoing reasons, the district court’s grant of Nash’s petition for a writ of habeas
corpus is AFFIRMED.
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McKeague, Circuit Judge, dissenting.
I disagree with the majority’s conclusion that “the evidence in this case establishes
nothing more than that Nash brought out the gun to scare his wife, that he followed his wife into
their daughter’s room on the same floor, and that the gun went off while Nash struggled with his
son.” Maj. Op. at 7. Accordingly, I respectfully dissent.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Nash can
only be granted habeas relief if the Ohio Court of Appeals made an unreasonable application of
the Supreme Court’s rule that a conviction is not supported by sufficient evidence if a rational
trier of fact could not have found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also 28 U.S.C. § 2254(d)(1); Getsy v.
Mitchell, 495 F.3d 295, 315-36 (6th Cir. 2007) (en banc). Here, the Ohio Court of Appeals made
no such unreasonable application.
Contrary to the majority’s contention, Ohio law is not “clear that bringing a gun to an
argument and having it go off at a downward trajectory during a struggle, without the gun ever
having been pointed at anyone, is not a felonious assault.” Maj. Op. 7. First, the majority’s
reliance on State v. Brooks, 542 N.E.2d 636 (Ohio 1989), is misplaced. While Brooks involved a
felonious assault arising from a heated argument, the gun was never fired, let alone fired twice.
Indeed, the Ohio Supreme Court stated “[t]he act of pointing of a deadly weapon at another,
without additional evidence regarding the actor’s intention, is insufficient evidence [for
felonious assault].” Id. at 639. However, the court also explained that “experience has
demonstrated that many homicides and serious assaults occur in the heat of impassioned
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arguments.” Id. at 643. The court emphasized that the victim and the defendant were
“embroiled in a volatile argument” when the defendant drew a revolver, angrily told her that he
would kill her, and only left the area when another person appeared to be calling the police. Id.
The court held that it could not “say that a reasonable jury . . . could not have concluded that the
defendant’s actions were ‘strongly corroborative’ of his intent to cause physical harm.”1 Id.
(emphasis added).
In Brooks, the defendant never fired the gun, whereas here, Nash fired it twice.2 To my
mind, firing a gun twice goes well beyond the mere act of pointing a gun. In other words, when
a shot is fired (particularly here where two were fired), whether the gun was pointed at anyone
arguably is part of the totality of the circumstances, but pointing the gun at the victim is not
required to establish felonious assault.
To the extent Brooks is instructive, it explains that “additional evidence” of intent
includes, in particular, a heated argument between the defendant and the victim. Indeed, here,
1
Indeed, guns and domestic disputes are a deadly combination:
Of females killed with a firearm, almost two-thirds were killed by their intimate partners. The number
of females shot and killed by their husband or intimate partner was more than three times higher than
the total number murdered by male strangers using all weapons combined in single victim/single
offender incidents in 2002.
***
Access to firearms yields a more than five-fold increase in risk of intimate partner homicide when
considering other factors of abuse, according to a recent study, suggesting that abusers who possess
guns tend to inflict the most severe abuse on their partners.
American Bar Association Commission on Domestic Violence, Survey of Recent Statistics (collecting sources),
http://www.abanet.org/domviol/statistics.html (last visited Dec. 5, 2007) (citations omitted).
2
The majority’s reliance on Green and Kline is similarly misplaced because neither involved the firing of a gun
at all, let alone twice. See State v. Green, 569 N.E.2d 1038, 1040-41 (Ohio 1991); State v. Kline, 464 N.E.2d 159, 165-
66 (Ohio Ct. App. 1983).
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like Brooks, we have just such additional evidence in the record. By all accounts, the argument
between Nash and his wife was heated. It is undisputed that while the argument was still in
progress, Nash retrieved a loaded gun, and without the safety engaged, introduced the gun into
the argument. Indeed, by Nash’s own admission, he retrieved the gun to “scare” his wife.
Of course, the jury was entitled to disbelieve his account and infer from the
circumstances that his intentions were even more nefarious. J.A. 386-87 (nephew admits that
Nash was “breathing hard and [had a] mad face” when he came down the stairs after retrieving
the gun); J.A. 597-98 (nephew in police report says Nash’s son was saying to his dad “what are
you doing” and “put the gun down” and then “wrapp[ed] his arms around his father trying to
stop him from shooting anybody”). In any event, a defendant acts knowingly, when, although
not intending the result, he is nevertheless aware that the result will probably occur and therefore
even assuming that Nash was only intending to “scare” his wife, he can still be found to have
acted knowingly. See State v. Edwards, 83 Ohio App. 3d 357, 361 (1992).
Moreover, after Nash fired the gun during the initial struggle with his son, he did not
leave the room, exit the home, or even simply put the gun down. Rather, he followed his wife
into their daughter’s room and he fired the gun again during a second struggle with his son. J.A.
595-96, 598, 602. When he fired the gun the second time, he was well aware that it was loaded
and fully operational. Indeed, this fact alone should put to rest any reasonable argument that
there was not sufficient evidence of felonious assault here.3
3
Moreover, I note that Nash threatened to kill his wife, albeit through a phone call to his son after he exited the
premises. Nash called the house while the police were there, and a detective listened in while his son spoke with Nash
on the phone. According to the detective, Nash stated, “[S]he did it this time. You can tell her she doesn’t have a job
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The majority’s reliance on Pack is similarly unpersuasive. State v. Pack, 674 N.E.2d
1263 (Ohio Ct. App. 1996). In Pack,
[t]he evidence at trial established that, on March 11, 1994, the victim, Charles
Allen, went to the home of appellant with another man, Leyman Pearson, for the
purpose of buying a handgun which appellant had for sale. The evidence further
established that after Pearson and appellant discussed the price of the handgun,
appellant shot the gun into the floor and then into the ceiling. There was
conflicting testimony as to whether appellant dry-fired the gun at Pearson.
However, it was clearly established that appellant then pointed the gun at Allen
while the two men were six inches to twelve inches apart. Allen testified that the
gun was pointed at his chest. Allen further testified that he then pushed the gun
away because he did not want to get shot. At that point, the gun went off and
Allen was shot in the finger.
674 N.E.2d at 1263. The victim in Pack testified, “It wasn’t out of anger, or anything like that,
he wasn’t saying, you know, pointing it at me to do me any bodily harm, he just was pointing it
that way. Do you know what I’m saying?” Id. at 1264. In Pack, the evidence established that
the defendant had zero intent to harm the victim, whereas here, even according to Nash’s version
of events, he intended to “scare” his wife during a heated argument, in which he pursued his wife
from one room to another with a loaded gun in his hand and the gun discharged twice. Nash’s
reliance on State v. Mills, 582 N.E.2d 972 (Ohio 1992), is unpersuasive for the same reason as
Pack, namely, no evidence suggested that the defendant intended to harm the victim.
The majority asserts that “[i]n previous cases upholding felonious assault convictions
involving a discharged gun, the courts have explicitly relied on the fact that the gun was
any longer because I’m going to F’ing kill her.” State v. Nash, No.2002CA00106, 2003 W L 139783, at *1 (Ohio Ct.
App. Jan. 13, 2003). W hile Nash’s threat arguably might be more probative if the threat occurred before or
contemporaneous with the shots he fired, it is some additional evidence of his intent to harm his wife.
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intentionally fired in the direction of another individual.” Maj. Op. 9 (citing State v. Salinas, 706
N.E.2d 381, 389-91 (Ohio Ct. App. 1997); State v. Owens, 678 N.E.2d 956, 958 (Ohio Ct. App.
1996); State v. Gregory, 628 N.E.2d 86, 90-91 (Ohio Ct. App. 1993)). In fact, those cases cited
by the majority support a finding that Nash acted knowingly.
Salinas involved a drive-by shooting. Salinas, 706 N.E.2d at 383-84. The court relied on
a similar drive-by shooting case and found that:
The similarities between [State v. Butticci, No. 95-L-121, 1996 WL 702473 (Ohio
Ct. App. November 22, 1996)] and this case are striking. As in Butticci, the
shooting took place on a January evening at approximately 8:30 to 8:40 p.m.,
appellant took shots at lighted residential structures, cars were parked in the
driveways of these homes, and the occupants were watching television in a living
room which faced the street. Moreover, appellant’s awareness of the high
probability that people were in these homes is evidenced by his statement to Brian
Semosky, the day following the shooting, that he hoped no one was “hit or hurt”
in the shooting. Here, as in Butticci, we conclude that the evidence was sufficient
to send the question of appellant’s guilt to the jury.
Id. at 389. To the extent that a drive-by shooting situation is at all relevant to the outcome in
Nash’s case, Nash’s conduct presents stronger grounds for a finding of felonious assault than in
Salinas. The defendant in Salinas fired shots from a car, fired those shots while at a great
distance from the homes, and did not shoot at any specific area within the homes, whereas Nash
fired a gun twice during a heated argument in a small house, fired the second shot in an even
smaller room within the house, and fired both shots while in close proximity to no less than five
of his family members.
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No. 06-4059
Nash v. Eberlin
In Owens, the defendant “claimed that he intended only to scare Kurt Ross when he fired
two shots at his vehicle.” 678 N.E.2d at 958. In finding that the jury’s determination that
defendant acted knowingly was substantiated by the evidence, the court explained
In the case sub judice, appellant shot a gun not just once, but twice, at Ross’s
moving car carrying two passengers while they were traveling on an icy
expressway. Again, as we stated in the opinion, the risk of physical harm to Kurt
Ross and Cynthia Combs under those circumstances was significant. In our
humble opinion, the doing of an act which causes a significant risk of harm
readily satisfies the required probability of harm.
Id. (emphasis added). Here, Nash too argued he only meant to “scare” his wife, but nonetheless
fired the weapon twice. Moreover, while Nash might not have aimed the weapon in the direction
of his wife, he fired the gun in closer proximity to a larger group of people with arguably more
potential for a significant risk of harm than the defendant in Owens that fired from a moving
vehicle at two victims that were also in a moving vehicle.
In Gregory, the defendant “argue[d] that the evidence showed he was drunk, that he did
not hit anything, and that he did not shoot at or threaten the officers when he had a better
opportunity as they were parked talking to Gates. Therefore, the evidence does not show he
acted knowingly.” Gregory, 628 N.E.2d at 91. While the court rejected the defendant’s
argument because he “fired multiple gunshots while pointing the gun directly at them,” it also
explicitly stated that “[t]he shooting of a gun in a place where there is a risk of injury to one or
more persons supports the inference that appellant acted knowingly.” Id. As discussed supra, I
submit that the shooting of a gun twice in a small house during a heated argument where there is
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No. 06-4059
Nash v. Eberlin
a significant risk of injury to no less than five people supports the inference that Nash acted
knowingly. Nash nor the majority cites any authority that mandates otherwise.
In any event, as the government explains, there is some evidence that Nash actually fired
the shot in the bedroom in his wife’s general direction. The second bullet went through the wall
next to the bedroom door, and Nash’s nephew told the police that he had taken Nash’s wife from
the bedroom out of the house immediately after the second shot. J.A. 423, 391-92, 598, 614 (Ex.
1K), 616 (Ex. 7G). Thus, she would have been between Nash and the door to the room. The
jury was entitled to disbelieve the later trial testimony of the witnesses to the shootings given
that they were all relatives of Nash that could have been trying to protect him.
Moreover, no “accident” instruction was provided to the jury here nor was there any
evidence to suggest the firearm “accidentally” discharged. See State v. Smith, No. 62427, 1993
WL 172973, *5 (Ohio Ct. App. May 10, 1993) (“An accident is defined as ‘an unfortunate event
occurring casually or by chance.’” (citations omitted)). Rather, despite a struggle, the evidence
showed that Nash pulled the trigger twice. See, e.g., J.A. 597-98 (nephew in police report
explaining that “Darell Nash Sr. fire[d] shot one” and “Darell Nash Sr. fired another shot”).
Indeed, during the struggle Nash’s son grabbed Nash, not the gun. See, e.g., J.A. 595, 597-98,
591. What is more, Nash admitted that when he fired the second shot the gun might have been
pointed at an “angle upwards a little bit” or at least that he did not know which way it
discharged. J.A. 605.
Nash’s conduct is, however, analogous to that of the defendant in Smith where the court
found sufficient evidence of felonious assault. See Smith, 1993 WL 172973, at *7. In that case,
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No. 06-4059
Nash v. Eberlin
the defendant “was holding a razor, which is certainly a deadly weapon, when he entered the
bedroom and continued to hold it during the entire altercation,” and “while [the victim] was
attempting to leave the home, appellant continued to pursue him, holding the razor.” Id. In
Smith, as here, the defendant contended that he was holding the weapon “as a way of letting [the
victim] know he did not want him in his home and wanted him to leave”—in other words, to
frighten the victim. Id. Even if Nash had not fired the gun in his wife’s general direction, and
even if he had not fired it at all, the facts here would still be comparable to those in Smith; the
defendant there did not slash at the victim with the razor, but simply followed the victim while
carrying a deadly weapon.
Accordingly, I respectfully dissent because the district court’s grant of the writ of habeas
corpus should be reversed inasmuch as the evidence was sufficient to convict Nash of felonious
assault and the district court did not exercise proper deference under AEDPA.
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