State v. Shaw

[Cite as State v. Shaw, 2017-Ohio-7404.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105111

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

CARLTON JUNIOR SHAW
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART, MODIFIED IN PART,
AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-602195-A

BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: August 31, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender

BY: Cullen Sweeney
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Andrea N. Isabella
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Carlton Junior Shaw, appeals his convictions and raises

the following four assignments of error:

1. Carlton Shaw’s conviction for tampering with evidence is not supported
by legally sufficient evidence as required by state and federal due process.

2. The verdict form on Count 3 (discharge of a firearm on or near a
prohibited premises) only supports a conviction for a misdemeanor of the
fourth degree because the verdict form did not state the degree of the
offense or include the aggravating element, as required by R.C. 2945.75.

3. The trial court erred in failing to instruct the jury on the lesser charge
(misdemeanor version) of discharging a firearm on or near a prohibited
premises.

4. Carlton Shaw was denied his right to the effective assistance of counsel
in violation of the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution when his
attorney failed to ensure that the jury received all the necessary instructions.

{¶2} We find some merit to the appeal, affirm Shaw’s tampering with evidence

conviction and modify Shaw’s discharging a firearm on or near a prohibited premises by

reducing it from a third-degree felony to a first-degree misdemeanor.

I. Facts and Procedural History

{¶3} Shaw was charged with two counts of felonious assault, one count of

tampering with evidence, and one count of discharging a firearm on or near a prohibited

premises. One of the victims, Lavonte Hinchen, testified at trial that he has two children

with Whitley Harris, who was living with Shaw at the time of the events giving rise to

this case. Hinchen testified that although he shared joint custody of the children with

Harris, Harris often refused to relinquish custody of the children to Hinchen for visitation
in accordance with a joint custody order. Over time, the animosity between them had

become hostile.

{¶4} Hinchen testified that he often tried to call Harris to schedule visitation, but

she never answered his calls. According to Harris, Hinchen became increasingly

aggressive to the point that she sought and obtained a temporary restraining order to

prevent Hinchen from coming to her house. Hinchen, who alleges he was unaware of the

temporary restraining order, asked his brother, Anthony Lee, to accompany him to pick up

his children from Harris’s home on December 20, 2015.

{¶5} Lee drove separately and met Hinchen at Harris’s apartment, which was

located inside a multifamily house. Hinchen knocked on the door, and Harris refused to

allow him to take the children, claiming she had a protective order that prevented him

from coming to her home. Lee suggested to Hinchen that he go to the police department

and ask for assistance in enforcing the child custody order. Hinchen agreed and set off to

the police station.

{¶6} Meanwhile, Harris exited the building and began speaking with Lee, with

whom she had a better relationship. While they were talking, Shaw appeared “out of

nowhere,” stuck a gun in his face, and threatened “I’m about to body you.” (Tr. 331.)

Lee testified that Shaw was “highly agitated” and was “swaying side to side” with his

finger on the gun’s trigger. Harris told Shaw, “He is a man of God. He is a minister. *

* * Don’t shoot him.” (Tr. 337.) Lee, who was a psycho-educational-juvenile

therapist and an ordained clergyman, was trained to counsel juveniles with oppositional
defiance disorder and PTSD. He calmly spoke to Shaw in an attempt to diffuse the

situation. (Tr. 313.)

{¶7} Shaw began to regain composure, but Hinchen returned to the scene to see

why Lee was not following him to the police station. When Shaw saw Hinchen, he

became agitated again. Lee pushed Shaw behind the apartment building to remove him

from Hinchen’s sight. Shaw seemed to be listening to Lee, who was still trying to calm

him down, but when Hinchen appeared from behind the building, Shaw “flared up” again.

(Tr. 345.) Lee hugged Shaw to restrain him, but Shaw grabbed Lee’s wrist, on which

he had recently had surgery, and Lee recoiled in pain. Lee could not stop Shaw so he

yelled to Hinchen to run. (Tr. 347.) According to Lee, Shaw pointed the pistol in

Hinchen’s direction and pulled the trigger. The gun misfired at first, but Shaw

eventually fired three to four shots.

{¶8} Lee, who had a concealed carry permit, lifted his gun in self-defense but

realized the slide on Shaw’s gun was open, which meant that it was out of ammunition.

Shaw “took off running,” and Lee walked back to the front of the building where Harris

was “crying hysterically” in the front yard. (Tr. 350.) Lee told Harris to secure the

children inside and called 911. (Tr. 350.)

{¶9} Lee began driving to the nearest police station and happened upon a police

cruiser on a nearby street. After Lee told the police what happened, they activated their

lights and drove to Harris’s apartment. Meanwhile, Hinchen called the police and

reported that he had seen Shaw aim a gun at Lee’s head. Harris also called the police to
report that Hinchen was at her door in violation of the protection order. Soon there were

ten police officers on the scene.

{¶10} Sgt. William Mokshefsky questioned Shaw at the scene. Shaw denied he

had a gun or shot a gun. Yet, while police were detaining Shaw, other officers

discovered his gun hidden in a wall in the basement of the apartment building. When

Detective Arrif Shahid questioned Shaw the following day, Shaw admitted he owned a

gun and that he fired it, but claimed he only fired a single warning shot into the ground.

{¶11} At trial, Shaw admitted he was angry and wanted to fight Hinchen. He also

admitted that he possessed a gun when he exited the apartment and confronted Lee.

Shaw explained that two weeks earlier, Hinchen aggressively confronted him and Harris

at a McDonald’s drive-thru. Hinchen pulled his car up next to Harris’s car in the

drive-thru. He knocked on the window and attempted to open the door to Harris’s car.

When the two cars were stopped at a red light at the end of the McDonald’s driveway,

Shaw exited Harris’s car and approached Hinchen, who exited his car. Shaw testified

that because he observed Hinchen open his trunk and reach for a firearm, he got back in

Harris’s car and they drove away.

{¶12} Shaw testified that he feared for his life when Hinchen came to Harris’s

apartment because of the incident at the McDonald’s. Although he admitted that he

wanted to fight Hinchen, he testified that he held his gun solely for self-defense and only

fired a single warning shot. He never intended to shoot Lee or Hinchen.
 {¶13} The jury acquitted Shaw of both counts of felonious assault but found him

guilty of discharging a firearm on or near a prohibited premises and tampering with

evidence. The court sentenced him to a three-year prison term on the firearm

specifications and community control sanctions on the underlying offenses. (Tr. 889.)

Shaw now appeals his convictions.

II. Law and Analysis

A. Tampering with Evidence

{¶14} In the first assignment of error, Shaw argues his tampering with evidence

conviction is not supported by sufficient evidence.

{¶15} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. The relevant inquiry 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. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶16} Shaw was convicted of tampering with evidence in violation of

R.C. 2921.12(A)(1). R.C. 2921.12(A)(1) provides that “no person, knowing that an

official proceeding or investigation is in progress, or is about to be or likely to be

instituted, shall * * * alter, destroy, conceal, or remove any record, document, or thing,

with purpose to impair its value or availability as evidence in such proceeding or

investigation[.]” Thus, to prove tampering with evidence, the state had to prove that the
defendant (1) had knowledge that an official proceeding or investigation was in progress

or likely to be instituted; and (2) altered, destroyed, concealed, or removed the potential

evidence; (3) for the purpose of impairing the potential evidence’s availability or value in

such proceeding or investigation. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139,

11 N.E.3d 1175, ¶ 11.

{¶17} In other words, a tampering with evidence conviction requires proof that the

defendant intended to impair the availability of evidence that is related to “an existing or

likely official investigation or proceeding.” Id. at ¶ 19. Thus, the state must prove the

defendant knew that an investigation was either ongoing or likely to occur at the time he

altered, destroyed, or concealed the evidence. State v. Barry, 145 Ohio St.3d 354,

2015-Ohio-5449, 49 N.E.3d 1248, ¶ 22.

{¶18} “‘A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.’” Id., quoting Black’s Law Dictionary 1004 (10th

Ed.2014). In determining whether the defendant acted knowingly or purposely, the jury

may infer the defendant’s state of mind from the surrounding circumstances. State v.

Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634, ¶ 19, citing State v. Rock, 3d

Dist. Seneca No. 13-13-38, 2014-Ohio-1786, ¶ 13. A person acts “purposely” when “it

is his specific intention to cause a certain result.” R.C. 2901.22(A).

{¶19} Shaw argues, citing Barry, that it could not be presumed that the police

would investigate a shooting incident simply because he fired a gun. He also contends

there is no actual evidence that he knew an investigation was likely to be instituted
against him when he concealed the gun in a wall in the basement of Harris’s apartment

building. Indeed, Ohio law does not impute constructive knowledge of an impending

investigation based solely on the commission of an offense. Barry at syllabus. “[T]he

fact that an act was unmistakably a crime does not, by itself, establish that the accused

knew of an investigation into that crime or that such investigation was likely to be

instituted.” Id.

{¶20} In Barry, the defendant concealed several grams of heroin wrapped in a

condom in her vagina during a drive from Middletown, Ohio to Huntington, West

Virginia. A state highway patrol officer stopped her vehicle after hearing its defective

muffler and observing erratic driving. The officer smelled marijuana and searched the

car but only found a bag containing marijuana residue. However, after speaking with

Barry and her friends, the officer suspected that Barry’s friends had given her contraband

that she was hiding in her body. She later produced the condom containing the heroin in

the presence of a female officer and was charged with trafficking in heroin, possession of

heroin, conspiracy to traffic in drugs, and tampering with evidence. Id. at ¶ 8.

{¶21} Barry was subsequently convicted of tampering with evidence after

admitting at trial (1) that she concealed the heroin so the police could not see it and (2)

that she knew it was “an unmistakable crime” to possess heroin. However, on appeal

Barry argued the trial court erred in giving the “unmistakable crime” instruction to the

jury because it improperly created an irrebuttable presumption that she had knowledge of

an investigation regardless of whether she could have anticipated it. In reversing Barry’s
conviction, the Ohio Supreme Court held that “merely establishing that the crime

committed is an unmistakable crime is insufficient to prove that the accused knew at the

time the evidence was altered, destroyed, concealed, or removed that an official

proceeding or investigation into that crime was * * * likely to be instituted.” Id. at ¶ 26.

{¶22} In reaching this conclusion, the court referred to its earlier decision in

Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175. In that case, two

narcotics detectives stopped Straley’s car after observing it travel left of center. They

suspected Straley of driving under the influence of alcohol, but when the search of her car

revealed no contraband, the detectives decided not to arrest her. However, Straley

needed to urinate while the officers were attempting to find her a safe ride home. An

officer searched the area where she relieved herself and discovered a urine soaked

cellophane baggie containing crack cocaine. Straley at ¶ 19.

{¶23} Straley subsequently pleaded no contest to drug trafficking and possession

of cocaine, and a jury convicted her of tampering with evidence. In affirming the

appellate court’s decision reversing Straley’s tampering with evidence conviction, the

Ohio Supreme Court explained “[t]here is nothing in the record to suggest that the

officers were conducting or likely to conduct an investigation into trafficking or

possession of cocaine when Straley discarded the baggie.” Id.

{¶24} Although both Straley and Barry concealed contraband, it was unlikely that

an investigation into drug trafficking was going to be instituted against them at the time

they hid the evidence. Unlike the facts of this case, there was nothing that would have
drawn attention to their drug trafficking activity. Straley and Barry concealed the

contraband before they knew they would actually encounter the police. Hiding the

evidence was a preemptive measure as opposed to a reaction to a likely investigation of a

recent criminal act. Shooting a gun in a residential neighborhood in broad daylight is an

entirely different circumstance than those presented in Straley and Barry because it

involves a loud disturbance that is likely to attract attention.

{¶25} Moreover, Shaw fired the weapon during an angry confrontation with Lee

and Hinchen. Lee and Hinchen testified that Shaw aimed the gun at Hinchen when he

fired the shots. Under these circumstances, it is reasonable to infer that Lee and Hinchen

would call the police to report the incident. And Shaw admits he fired the gun, though

he claims he fired a single warning shot into the ground. Even if the jury believed that

Shaw only fired a warning shot, it is still reasonable to conclude that Lee and Hinchen

would call the police because Shaw, who was admittedly angry, fired the weapon during

an argument.

{¶26} Shaw also knew that Harris had a protective order that prohibited Hinchen

from coming to her house. Shaw testified that when he learned that Hinchen was at the

front door, he thought to himself:

I’m like he’s back again. This is not the first time he’s done this. Call the
police. I don’t know why the police force is not here. Called the police
various times. Took the next step to get a restraining order.

(Tr. 736.) Thus, it is reasonable to infer that Shaw knew Harris would have called the

police to the scene to enforce the protection order against Hinchen, whom Harris claimed
had become increasingly aggressive. Therefore, under the totality of the circumstances,

the jury could reasonably conclude that Shaw knew there was a strong likelihood that the

police would soon arrive on the scene to investigate the shooting.

{¶27} Therefore, there was sufficient evidence to establish that Shaw committed

all the elements of tampering with evidence. The first assignment of error is overruled.

B. Misdemeanor Offense

{¶28} In the second assignment of error, Shaw argues his third-degree felony

conviction for discharging a firearm on or near a prohibited premises should be reduced

to a fourth-degree misdemeanor to conform to the jury’s verdict.

{¶29} Shaw was found guilty of discharging a firearm on or near a prohibited

premises in violation of R.C. 2923.162(A)(3), which provides that “no person shall

discharge a firearm upon or over a public road or highway.” The indictment alleged that

Shaw discharged a firearm upon or over a public road or highway and that “the violation

created a substantial risk of physical harm to any person or caused serious physical harm

to property.” This language elevated the offense from a misdemeanor to a third-degree

felony pursuant to R.C. 2923.162(C)(2).

{¶30} Although the trial court instructed the jury on the offense enhancing

language, the verdict form on which the jury found Shaw guilty did not include the

aggravating elements. R.C. 2945.75 provides:

When the presence of one or more additional elements makes an offense

one of more serious degree * * * [a] guilty verdict shall state either the
 degree of the offense of which the offender is found guilty, or that such

additional element or elements are present. Otherwise, a guilty verdict

constitutes a finding of guilty of the least degree of the offense charged.

{¶31} The Ohio Supreme Court has held that because this statutory language is

plain and unambiguous, it must be applied as written. State v. Pelfrey, 112 Ohio St.3d

422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 11. See also State v. Lee, 8th Dist. Cuyahoga

No. 103988, 2016-Ohio-8324, ¶ 32. “R.C. 2945.75(A) plainly requires that in order to

find a defendant guilty of ‘an offense * * * of more serious degree,’ the guilty verdict

must either state ‘the degree of the offense of which the offender is found guilty’ or state

that ‘additional element or elements are present.’” Id.

{¶32} The state concedes that the verdict form in this case does not support a

third-degree felony conviction because it neither states the degree of the offense nor

provides the offense enhancing language. Therefore, based on the verdict form, the jury

could only find Shaw guilty of the misdemeanor version of the offense.

{¶33} However, despite Shaw’s argument that his conviction should be reduced to

a fourth-degree misdemeanor, R.C. 2923.162(C)(1) provides that discharging a firearm

“upon or over a highway” in violation of R.C. 2923.162(A)(3) is a first-degree

misdemeanor. Therefore, Shaw’s discharging a firearm on or near a prohibited premises

should be reduced from a third-degree felony to a first-degree misdemeanor.

{¶34} The second assignment of error is sustained.

C. Jury Instruction on Misdemeanor Offense
 {¶35} In the third assignment of error, Shaw argues, in the alternative to the

second assignment of error, that the trial court erred in failing to charge the jury on the

misdemeanor offense of discharging a weapon on or near a prohibited premises.

However, because we have determined that Shaw could only be convicted of the

misdemeanor form of the offense according to the verdict form, this assigned error is

moot.

D. Ineffective Assistance of Counsel

{¶36} In the fourth assignment of error, Shaw argues his Sixth Amendment right to

the effective assistance of counsel was violated because his trial counsel failed to ensure

that the court provided complete and accurate jury instructions on the elements of

tampering with evidence and the misdemeanor version of discharging a firearm at or near

a prohibited premises. Since we have already determined that Shaw could only be

convicted of the misdemeanor version of discharging a firearm at or near a prohibited

premises, our discussion focuses solely on Shaw’s arguments as they relate to the trial

court’s instructions on tampering with evidence.

{¶37} To establish a claim for ineffective assistance of counsel, Shaw must show

that his trial counsel’s performance was deficient and that the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To

establish prejudice, the defendant must demonstrate there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland at 694.

{¶38} As previously stated, Shaw contends his trial counsel should have asked the

court to instruct the jury on how it should determine whether Shaw knew that an

investigation would likely be instituted against him in accordance with Barry, 145 Ohio

St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248. He contends the court’s charge, which

mirrored the statutory language governing tampering with evidence, was inaccurate and

incomplete.

{¶39} As previously stated, the Ohio Supreme Court in Barry specifically rejected

the proposition that by simply committing an “unmistakable crime,” the defendant has

constructive knowledge of an impending investigation into the crime. Id. at ¶ 23.

Accordingly, the court in Barry held that the trial court erred by providing the following

“unmistakable crime” instruction:

When an offender commits an unmistakable crime, the offender has

constructive knowledge of an impending investigation of the crime

committed.

The trial court in this case did not provide an “unmistakable crime” instruction.

{¶40} Further, R.C. 2921.12(A)(1), which governs tampering with evidence,

provides that “no person, knowing that an official proceeding or investigation is in

progress, or is about to be or likely to be instituted, shall * * * alter, destroy, conceal, or

remove any record, document, or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation[.]” The court charged the jury on

tampering with evidence as follows:

Before you can find the defendant guilty of tampering with evidence, you
must find beyond a reasonable doubt that on or about the 20th day of
December 2015 in Cuyahoga County, Ohio, the defendant did, knowing that
an official proceeding or investigation was in progress or was about to be or
likely to be instituted, alter, destroy, conceal or remove any record,
document or thing with purpose to impair its value or availability as
evidence in such proceeding or investigation.

The trial court’s instruction on the elements of tampering with evidence was consistent

with the statute. In Barry, the Ohio Supreme Court defined the term “knowingly” as

follows:

“A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.”

Id. at ¶ 23, quoting R.C. 2901.22(B).

{¶41} With respect to the knowingly mens rea, the trial court instructed the jury as

follows:

A person acts knowingly regardless of purpose when the person’s aware
that person’s conduct will probably cause a certain result or be of a certain
nature. A person has knowledge of circumstances when the person’s
aware that such circumstances probably exist.

When knowledge of the existence of a particular fact is an element of an

offense, such knowledge is established if a person subjectively believes that
 there is a high probability of its existence and fails to make inquiry or act

with a conscious purpose to avoid learning the fact.

{¶42} This language is identical to the Ohio Supreme Court’s definition of

“knowingly” in Barry. The trial court’s instructions on tampering with evidence and the

term “knowingly” were consistent with Barry in every respect. There was no reason for

Shaw’s counsel to request a different instruction since the charge the court gave the jury

was a complete and accurate statement of the applicable law.

{¶43} Therefore, the fourth assignment of error is overruled.

III. Conclusion

{¶44} Shaw’s tampering with evidence conviction was supported by sufficient

evidence. A jury could reasonably conclude that Shaw expected the police would

respond to the scene to investigate the shooting since the incident occurred in daylight,

there were two surviving victims who would have likely called the police, and his

girlfriend was inclined to call the police to enforce a protection order against Hinchen.

{¶45} Shaw’s discharging a firearm on or near a prohibited premises should have

been reduced to a first-degree misdemeanor because the verdict form failed to state either

the degree of the offense or the offense enhancing language that would have elevated the

offense to a third-degree felony.

{¶46} Shaw was not deprived of his Sixth Amendment right to counsel even

though counsel did not request a jury instruction on tampering with evidence that

included special instructions on the “knowingly” mens rea of the offense. The jury
instructions provided by the trial court were consistent with the applicable statutes and the

Ohio Supreme Court’s decision in Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49

N.E.3d 1248.

{¶47} Accordingly, the trial court’s judgment is affirmed in part and modified in

part. Shaw’s discharging a firearm on or near a prohibited premises conviction is

reduced from a third-degree felony to a first-degree misdemeanor to conform to the

verdict form. We remand the case to the trial court for resentencing on the first-degree

misdemeanor.

It is ordered that appellant and appellee share 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 in part, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence with resentencing on the first-degree misdemeanor.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

TIM McCORMACK, P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE ATTACHED OPINION

SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:
 {¶48} I respectfully dissent from the majority’s view on the first assignment of

error that there was sufficient evidence to establish that Shaw committed all of the

elements of tampering with evidence. At most, Shaw committed falsification, an

offense for which he was not charged. Under the majority’s rationale, every defendant

who does not immediately confess to the police and turn over all evidence of a crime has

arguably tampered with evidence. This is an erroneous application of the tampering

with evidence statute that stretches the inferences of what a criminal defendant does to an

unreasonable extreme. I concur with regard to the other assignments of error.