[Cite as State v. Salinas, 2016-Ohio-7171.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
__________________________________________________________________
STATE OF OHIO, CASE NO. 4-15-21
PLAINTIFF-APPELLEE,
v.
PAULETTA D. SALINAS, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 14-CR-1195
Judgment Affirmed
Date of Decision: October 3, 2016
APPEARANCES:
W. Alex Smith for Appellant
Russell R. Herman for Appellee
Case No. 4-15-21
WILLAMOWSKI, J.
{¶1} Defendant-appellant Pauletta Salinas (“Pauletta”) brings this appeal
from the judgment of the Court of Common Pleas of Defiance County entering
judgment of the jury’s verdict finding her guilty of felonious assault and sentencing
her on the conviction. On appeal Salinas challenges 1) the jury instruction given on
the self-defense claim and 2) the effectiveness of counsel. For the reasons set forth
below, the judgment is affirmed.
{¶2} On July 29, 2014, police responded to a domestic disturbance call
involving Pauletta and her husband, Vincent Salinas (“Vincent”). When the police
arrived, they found Vincent bleeding from a gunshot wound inflicted by Pauletta.
Pauletta claimed that Vincent had attempted to rape her and she shot him in self-
defense. Vincent claimed that they were engaged in consensual rough sex and she
hit him with the gun and shot him.
{¶3} On August 7, 2014, the Defiance County Grand Jury indicted Pauletta
on two counts: 1) Attempted Aggravated Murder in violation of R.C. 2923.02 and
2903.01(A) with a firearm specification, an unclassified felony and 2) Felonious
Assault in violation of R.C. 2903.11(A)(2), a felony of the second degree. Doc. 1.
A jury trial was held from September 8-11, 2015. At the conclusion of the trial, the
jury returned a verdict of not guilty as to the attempted aggravated murder with the
firearm specification and a verdict of guilty as to the felonious assault charge. Doc.
42. A sentencing hearing was held on November 12, 2015. Doc. 47. The trial court
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sentenced Pauletta to six years in prison. Id. On December 2, 2015, Pauletta filed
her notice of appeal. Doc. 50. Pauletta raises the following assignments of error on
appeal.
First Assignment of Error
[Pauletta] received ineffective assistance of counsel and violation
of [her] rights under the sixth and [fourteenth] amendments to
the United States [C]onstitution [and] Article I, Section 10 of the
[C]onstitution of the State of Ohio.
Second Assignment of Error
[Pauletta’s] sixth and fourteenth amendments were violated when
she was given an improper jury instruction of self-defense under
[R.C.] 2901.05(A) rather than presumptive self-defense under
[R.C.] 2901.05(B).
For clarity, we will be addressing the assignments of error out of order.
{¶4} Pauletta claims in the second assignment of error that the trial court
should have instructed on self-defense as set forth in R.C. 2901.05(B) rather than
that in R.C. 2901.05(A). Initially, this court notes that no request for this instruction
was made at the time of trial. Thus, any alleged error must be reviewed under a
plain error standard of review. State v. Russell, 5th Dist. Stark No. 2003CA00039,
2003-Ohio-5324. To prevail under a plain error analysis, the appellant must
demonstrate that the outcome of the trial clearly would have been different but for
the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). “Notice of plain
error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id. at 808.
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The statute in question states in pertinent part as follows.
(A) Every person accused of an offense is presumed innocent until
proven guilty beyond a reasonable doubt, and the burden of proof
for all elements of the offense is upon the prosecution. The burden
of going forward with the evidence of an affirmative defense, and
the burden of proof, by a preponderance of the evidence, for an
affirmative defense, is upon the accused.
(B)(1) Subject to division (B)(2) of this section, a person is
presumed to have acted in self-defense or defense of another when
using defensive force that is intended or likely to cause death or
great bodily harm to another if the person against whom the
defensive force is used is in the process of unlawfully and without
privilege to do so entering, or has unlawfully and without
privilege to do so entered, the residence or vehicle occupied by the
person using the defensive force.
(2)(a) The presumption set forth in division (B)(1) of this section
does not apply if the person against whom the defensive force is
used has a right to be in, or is a lawful resident of, the residence
or vehicle.
***
(3) The presumption set forth in division (B)(1) of this section is a
rebuttable presumption and may be rebutted by a preponderance
of the evidence.
R.C. 2901.05. Pauletta argues that it was plain error for the trial court not to give
the instruction that she had no duty to retreat because she was in her own home.
However, this would only affect the outcome of the trial if the jury were to find that
Vincent had unlawfully entered the residence. A review of the record indicates that
there was evidence presented that indicated that Vincent had been invited to the
home. Vincent testified that she had asked him to come to the house after work and
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text messages from her phone to Vincent’s indicated that she wanted him to come
over. Thus, the jury could reasonably believe that Vincent had a right to be in the
residence. The evidence does not show that but for the failure to give that
instruction, the outcome of the case would have clearly been different. The second
assignment of error is overruled.
{¶5} In the first assignment of error, Pauletta claims she was denied effective
assistance of counsel.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905. The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
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violation makes it unnecessary for a court to consider the other prong of the test.
State v. Anaya, 191 Ohio App.3d 602, 2010-Ohio-6045, 947 N.E.2d 212, ¶ 25.
{¶6} Here, Pauletta claims that her counsel was ineffective for not requesting
an instruction on self-defense as set forth in R.C. 2901.05(B) and instead just
accepting the instruction as set forth in R.C. 2901.05(A). As discussed above, the
evidence does not support the conclusion that the outcome of the trial would have
clearly been different if the instruction to the jury had been different. Without a
showing of prejudice, this court cannot find that counsel was ineffective for failing
to request a different instruction. The first assignment of error is overruled.
{¶7} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Defiance County is affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
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