[Cite as State v. Simmons, 2017-Ohio-183.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104080
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TIASHIA SIMMONS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-596463-A
BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 19, 2017
ATTORNEY FOR APPELLANT
Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Steven McIntosh
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Tiashia Simmons, appeals her conviction, raising the
following two assignments of error:
I. The appellant was denied due process of law and a fair trial as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution due to admission of an irrelevant but highly prejudicial police
body camera recording.
II. The appellant was denied effective assistance of counsel as guaranteed
by the Sixth Amendment to the United States Constitution due to the failure
of counsel to object to the court placing the burden of proof on her to prove
self-defense.
{¶2} Finding no merit to the appeal, we affirm.
A. Procedural History and Facts
{¶3} In June 2015, Simmons was indicted on the following five counts:
attempted murder, two counts of felonious assault, discharge of firearm on or near
prohibited premises, and tampering with evidence. The first three counts carried a
one- and three-year firearm specification. The charges arose in connection with
Simmons’s shooting of Kevin Bebee on June 3, 2015. Simmons pleaded not guilty to
the charges, and the matter proceeded to a jury trial.
{¶4} The state’s evidence at trial revealed that around 7:30 p.m. in the evening
on June 3, 2015, Simmons drove to East 149th Street where she fired several shots at
Bebee while he was seated in his van and driving home. One of the shots entered the
van and hit Bebee on his left side, causing severe injuries.
{¶5} Aside from Bebee’s testimony, who expressly identified Simmons as the
shooter, the state presented two other eyewitnesses — Betty Harris and Linda Coleman,
both of whom were outside at the time of the shooting and testified that Simmons shot at
Bebee’s van while he was driving down the street. Both witnesses testified that
Simmons initiated the shooting. Coleman testified that she did not see Bebee holding
“anything” out of his van window; nor did she observe him firing any gunshots. Harris
testified that, upon seeing Bebee coming down the street in his van, she observed
Simmons get out of her car, holding her gun, and then ultimately firing shots. After
Simmons fired the first shot, Harris ran upstairs to get her daughter, Jasmine Harris.
Jasmine observed Simmons walking back to her car with a gun in her hand and then drive
off.
{¶6} EMS and police arrived on the scene within minutes following the 911 call.
The police recovered five 9 mm shell casings in the street. The eyewitnesses
immediately informed police that Simmons was the shooter. The police drove to
Simmons’s house where they found her sitting outside on her porch. Simmons told the
police that she had been home all day and denied being at East 149th Street. Simmons
further acknowledged owning a firearm and having a carrying concealed weapon license,
at which time the police arrested and detained Simmons in the back of a police cruiser.
Simmons granted the police consent to search her house for the firearm, which they were
unable to locate, but did recover 9 mm bullets in Simmons’s bedroom. The police also
submitted a gunshot residue test of Simmons’s hands that resulted in a positive finding of
gunshot residue. The next day, Simmons told the police that she had left her house the
day before, but only to go to her friend’s house where she had been drinking since
approximately 3:00 p.m. that day.
{¶7} At trial, however, Simmons admitted to shooting Bebee. According to
Simmons’s testimony, she acted in self-defense. She fired her gun only after seeing the
barrel of Bebee’s gun directed at her. She further explained that she had driven over to
East 149th Street to pick up her boyfriend, Daryl Jackson, before getting her children
from daycare. Simmons explained that she lied to the police because she relied on the
advice of Jackson and feared going to jail.
{¶8} Jackson testified on Simmons’s behalf at trial, indicating that he and Bebee
sold drugs together and that the state’s witnesses, who included his aunt (Harris) and
cousin (Jasmine), were not telling the truth because they were protecting Bebee who they
relied on financially. Jackson further acknowledged that he told Simmons to deny
everything and not to cooperate with the police. Jackson further admitted to retrieving
Simmons’s firearm and disposing of it before the police arrived at her home.
{¶9} At the end of the state’s case, the trial court granted the defendant’s Crim.R.
29 motion for acquittal as to the tampering with evidence count.
{¶10} The jury ultimately returned a not guilty verdict on the attempted murder
count but guilty on the felonious assault and discharge of a firearm on or near prohibited
premises. At sentencing, the trial court merged the offenses as allied and the state
elected to proceed on felonious assault in violation of R.C. 2903.11(A)(1). Simmons
was sentenced to a total of six years in prison.
{¶11} This appeal followed.
B. Admission of Evidence
{¶12} In her first assignment of error, Simmons argues that the trial court erred in
allowing the state to play the police body-camera recording that captured her statements
while seated in the back of the police cruiser. She contends that the evidence was
irrelevant and highly prejudicial. According to Simmons, the admission of this evidence
caused the jury to decide the case on an “improper basis,” and therefore her conviction
must be reversed. We disagree.
{¶13} Evid.R. 402 provides that “[e]vidence which is not relevant is not
admissible.” Evid.R. 403(A) states that a judge must exclude evidence, regardless of its
relevance, if “its probative value is substantially outweighed by the danger of unfair
prejudice.” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶
112.
{¶14} Simmons acknowledges that defense counsel did not object to all portions of
the body-camera recording presented at trial. She points, however, to that portion of the
recording where she is heard saying, “I hate police,” which defense counsel objected to as
being irrelevant and prejudicial.
{¶15} Even if we agreed that this statement should have been redacted from the
recording and not admitted, we find that any error is harmless. An error is harmless if it
does not affect a substantial right of an accused. Crim.R. 52(A). “The accused,
therefore, has a constitutional guarantee to a trial free from prejudicial error, not
necessarily one free of all error.” State v. Jones, 8th Dist. Cuyahoga No. 101514,
2015-Ohio-2151, ¶ 58, citing State v. Fears, 8th Dist. Cuyahoga No. 89989,
2008-Ohio-2661. And where there is no reasonable possibility that the unlawful
testimony contributed to a conviction, the error is harmless and therefore will not be
grounds for reversal. Fears at ¶ 14, citing State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d
623 (1976), paragraph three of the syllabus, vacated on other grounds, Lytle v. Ohio, 438
U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978); see also State v. Brown, 65 Ohio St.3d
483, 485, 605 N.E.2d 46 (1992).
{¶16} We do not agree that Simmons’s single derogatory statement regarding her
dislike for the police contributed to her conviction. From our review of the recording,
Simmons makes this statement while seated in the back of the police car, agitated and
frustrated with the length of time the police have searched her house. Aside from the
statement being overshadowed by Simmons’s clear fear of going to jail, her repeated
claims of innocence, and the fact that she has never gone to jail before, we find no basis
to conclude that this single statement contributed to Simmons’s convictions. Notably,
the jury acquitted Simmons of the attempted murder charge. And to the extent that the
jury did not find Simmons’s self-defense claim persuasive, the state’s eyewitnesses
overwhelmingly negated Simmons’s later asserted claim of self-defense. Aside from
Simmons’s self-serving testimony at trial as to self-defense, no other evidence
corroborated her claim of Bebee having a gun or firing shots. Accordingly, we find that
the error complained of was harmless beyond a reasonable doubt.
{¶17} The first assignment of error is overruled.
C. Ineffective Assistance of Counsel
{¶18} In her second assignment of error, Simmons argues that her trial counsel
was ineffective for failing “to object to the court placing the burden of proof on her to
prove self-defense.” Although Simmons recognizes that Ohio law places the burden on
the defendant to prove self-defense, she nonetheless argues that her trial counsel should
have challenged Ohio’s statutory requirement, namely, R.C. 2901.05(A), as being
unconstitutional. Relying on the United States Supreme Court’s decision in Dist. of
Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), Simmons
argues that placing the burden on the defendant to prove self-defense contravenes the
Second Amendment. According to Simmons, the Second Amendment “proves a
presumptive right to self-defense” and that the state should bear the burden “to prove lack
of self-defense.”
{¶19} Simmons’s argument, however, has no merit.
{¶20} To establish ineffective assistance of counsel, a defendant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
{¶21} Simmons’s trial counsel’s decision not to challenge the constitutionality of
R.C. 2901.05(A) falls within the realm of competent representation and cannot be
characterized as deficient performance because such an objection would have been futile.
First, although it predates the decision in Heller, the United States Supreme Court in
Martin v. Ohio, 480 U.S. 228, 233-234, 107 S.Ct. 1098, 94 L.Ed.2d 67 (1987), upheld the
constitutionality of R.C. 2901.05(A), which we are bound to follow as an inferior court.
State v. Loyed, 8th Dist. Cuyahoga No. 83075, 2004-Ohio-3961, ¶ 33. Second, this
court has consistently rejected the exact argument advanced by Simmons, finding that
Heller does not support a different result. State v. Porter, 8th Dist. Cuyahoga No.
102257, 2016-Ohio-1115, ¶ 45; State v. Betliskey, 8th Dist. Cuyahoga No. 101330,
2015-Ohio-1821, ¶ 39; State v. Hudson, 8th Dist. Cuyahoga No. 96986,
2012-Ohio-1345, ¶ 23; State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, ¶ 42-47
(8th Dist.). As we have previously explained:
In Heller, the Court held that the Second Amendment protects an
individual’s right to possess a firearm in the home for the purpose of
self-defense. 554 U.S. at 635-636. In doing so, the Court recognized
that self-defense is a “central component” to the right to bear arms. Id. at
599. While Heller recognizes a right to self-defense, “nothing in Heller
purports to alter the way the states have defined self-defense.” Warmus at
¶ 47.
Hudson at ¶ 24.
{¶22} Accordingly, for these reasons, we overrule Simmons’s second assignment
of error.
{¶23} Judgment affirmed.
It is ordered that appellee recover from appellant the 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. Case 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.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR