[Cite as State v. Smith, 2020-Ohio-5119.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-19-070
Appellee Trial Court No. 2018CR0610
v.
Dale W. Smith DECISION AND JUDGMENT
Appellant Decided: October 30, 2020
*****
Paul Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
MAYLE, J.
Introduction
{¶ 1} Defendant-appellant, Dale W. Smith, appeals the August 16, 2019 judgment
of the Wood County Court of Common Pleas, convicting him of felonious assault and
sentencing him to five years in prison. For the following reasons, we affirm.
Facts and Procedural History
{¶ 2} Smith, who testified in his own defense, is a resident of Portage, Ohio in
Wood County. Smith has known the victim in this case, A.Z., for three years. During
that time, Smith allowed her to live with him “off and on,” but she was not living with
him on December 9, 2018, the date of the assault. Smith described his relationship with
A.Z. as sexual in nature and claimed that he paid her “every time” she came to his house.
{¶ 3} On December 9, 2018, A.Z. was at Smith’s home. In Smith’s words, after
A.Z. had “done her thing,” she asked for a ride to her home and to stop along the way for
cigarettes. After they left in his car, the two returned to Smith’s place so that he could
retrieve his own cigarettes and cell phone. While still in the car—outside the house—the
two argued. According to Smith, A.Z. told him that he had “better hurry up.” In
response, Smith “looked at her and said, ‘You don’t threaten me,’” and went inside to
“roll some cigarettes.”
{¶ 4} According to A.Z., she began honking the car horn while Smith was inside.
She said that when Smith came back outside, he was “screaming and yelling.” A.Z
exited the car as Smith approached, and as she stood up, Smith “put his forearm against
[her] body” and “pinned [her] against the car” and “punch[ed] [her] with his hand.” A.Z.
said that Smith “didn’t stop” punching her until he had hit her “more than fifteen times,”
each time with a closed fist on the right side of her face. During the assault, A.Z. “tried
to get away from [Smith] * * * several times.” She denied striking him, either before or
after the assault.
2.
{¶ 5} Smith offered a slightly different version of events. Smith testified that A.Z.
“blew and blew” the car horn while he was inside, so he returned to the car to tell her that
blowing a horn like that “in this neighborhood” is “the best way to get the police here.”
He said that when he walked outside, A.Z. was “sitting in the car” and “punch[ing] the
[car] window.” As he approached, A.Z. “stepped out of the car, and * * * punched [him]
right in the face.” Smith described the punch as a “light blow” to his cheek. Although he
later acknowledged that he “probably could have” just walked away from A.Z. “if [he]
had thought about it,” Smith testified that he “restrained” A.Z. by placing her neck in a
chokehold while “punching her in the face” with his other hand. He stated that he “only”
remembers punching her “two or three times.” He testified that he did this because he
“was afraid she was going to kick [his] butt” so he tried to “defend” himself. Smith
added that, as a 73 year old, he “can’t take much punishment.”
{¶ 6} Smith stated that after he released A.Z. from his grasp, she “stepped back
four or five steps” and then came at him in a “windmill” motion with a closed fist. Smith
thought to himself, “she didn’t learn that she can’t win this fight.” Smith then called 911,
twice, but the line disconnected because A.Z. was “trying to get” his phone.” Smith was
able to “walk[] away” from A.Z. to his house, and A.Z. did not follow him. As he was
unlocking his door, the 911 dispatcher called Smith, and the call was played for the jury.
Smith can be heard saying, “she thinks she can threaten me.” Smith told the 911 operator
that A.Z. hit him and that he “hit her back.” At the end of the call, the 911 operator
announced that A.Z. had just placed her own 911 call.
3.
{¶ 7} During A.Z.’s 911 call, she can be heard telling Smith, “you’re dead.”
When speaking to the operator, A.Z. reported that she and Smith “had a fight” because
“he wouldn’t take [her] home.” A.Z. described Smith as “older” but “strong” and said
that he had “just kept punching [her] in the eye over and over.”
{¶ 8} Wood County Deputy Sheriff Steven Deutschman was the first to arrive at
the scene, followed by Deputy Cody Hullinger, and both testified at trial. The deputies
observed that A.Z. was “hysterical” and she had some “swelling in the facial area.” Both
deputies were equipped with body cameras, and footage from the incident was played for
the jury—which included Smith’s statement to the authorities that he had “smacked the
shit out of” A.Z. by punching her “five or six times with a closed fist.” Also, Deputy
Hullinger testified that he “noticed some red marks” and a “scratch” on Smith’s right fist,
which appeared to be “defensive mark[s]” from A.Z. “attempting to get him to stop
punching her.” By contrast, the deputy observed “no facial injuries on [Smith]
correlating with what he said about [A.Z.] punching him.”
{¶ 9} A.Z. was transported by ambulance to the Wood County Hospital.
Paramedic Chad Dix testified that A.Z. had a “raised bruise” that was “the size of a golf
ball” and some “abrasions to her nose and cheek.” Records from the hospital established
that A.Z. was treated for a “cervical sprain, facial contusion, and a nasal bone fracture
* * * with minimal displacement.” Upon A.Z.’s release from the emergency room, she
was “strongly encouraged” to follow up with her primary care physician for a possible
referral to an ear, nose, and throat specialist.
4.
{¶ 10} On January 17, 2019, Smith was indicted for felonious assault, in violation
of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second degree (Count 1) and
domestic violence, in violation of R.C. 2919.25(A) and (D)(2), a misdemeanor of the first
degree (Count 2).
{¶ 11} Prior to trial, Smith identified David Connell, Ph.D., as an expert witness to
testify regarding A.Z.’s memory impairment. Dr. Connell had evaluated A.Z. in
connection with another matter, and concluded that she had “global memory impairment”
and “impairment [of her] short-term memory.” The state moved to exclude any evidence
from Dr. Connell on the basis that it would confuse and mislead the jury into believing
that A.Z. was not competent to testify, and it argued that the evidence must be excluded
as unduly prejudicial under Evid.R. 403(A). The trial court granted the state’s motion to
exclude Dr. Connell’s testimony.
{¶ 12} Following a one-day trial on August 14, 2019, the jury returned a verdict of
guilty as to the felonious assault offense and not guilty as to the domestic violence
offense. On August 16, 2019, the trial court convicted the defendant of felonious assault
and sentenced him to serve five years in prison and three years of postrelease control.
The defendant appealed and raises two assignments of error for our review.
Assignment of Error No. 1 – Whether the trial court erred by not
permitting the defense to present evidence about a witness’s short and
longer term memory issues.
5.
Assignment of Error No. 2 – Whether or not the defendant received
ineffective assistance of counsel.
Law and Analysis
1. The exclusion of certain evidence regarding A.Z.’s memory issues
{¶ 13} “The trial court has broad discretion in the admission and exclusion of
evidence and unless it has clearly abused its discretion and the defendant has been
materially prejudiced thereby, this court should be slow to interfere.” State v. Hymore,
9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). For an error to have materially
prejudiced a defendant’s case means that it must have affected the outcome of the trial.
State v. Gonzalez, 154 Ohio App.3d 9, 2003-Ohio-4421, 796 N.E.2d 12, ¶ 99 (1st Dist.).
“The term ‘abuse of discretion’ * * * implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
{¶ 14} In his first assignment of error, Smith argues that the trial court abused its
discretion when it prohibited the defense from presenting certain evidence relating to
A.Z.’s memory issues—i.e., the trial court precluded Smith from offering Dr. Connell’s
testimony at trial, and the trial court precluded Smith from cross-examining A.Z.
regarding any drugs she may have been taking at the time of the incident.
{¶ 15} We will address Smith’s arguments relating to Dr. Connell first. Dr.
Connell performed a psychological evaluation of A.Z. on April 23, 2019, for an entirely
different case. In a written report (which was obtained by Smith’s defense counsel),
6.
Dr. Connell states that he evaluated A.Z. at the Wood County Detention Center, where
she was being detained following a “domestic incident involving her and a neighbor”—
not Smith—and the report goes on to chronicle A.Z.’s history of physical abuse, sexual
assault, and mental illness. Dr. Connell evaluated A.Z. at the request of The Cocoon, a
Wood County agency that provides emergency shelter and other services to victims of
domestic violence and sexual abuse. It is not clear who provided a copy of this report to
Smith’s defense counsel. Regardless, Smith wanted to call Dr. Connell to testify
regarding his opinion (as stated in this report) that “[i]n general, [A.Z.] has global
memory impairment, as well as other cognitive deficits” and “impairment [of her] short-
term memory.”
{¶ 16} During an oral argument just moments before the trial began, the defense
argued that Dr. Connell’s testimony was being offered as “extrinsic evidence” to
“attack[]” A.Z.’s “credibility” under Evid.R. 616(B), which provides that a “defect of
capacity [or] ability * * * to * * * remember * * * may be shown to impeach the witness
either by examination of the witness or by extrinsic evidence.” The trial court rejected
this argument and refused to allow Dr. Connell to testify, concluding that it would be
“unconscionable to allow [Smith] to benefit from his own criminal conduct as it may
affect the victim’s ability to recall certain events”—suggesting that the trial court may
have believed that Smith caused A.Z.’s memory issues. Dr. Connell, however, offered no
opinion as to the cause of A.Z.’s memory impairment in his report, and there are no facts
to suggest that he was even aware of the state’s case against Smith.
7.
{¶ 17} On appeal, Smith argues that Dr. Connell’s testimony was “critical” to his
defense because it demonstrates that A.Z. had “clear * * * memory issues.” Yet, in the
next sentence, Smith suggests that A.Z. was simply lying, as opposed to suffering
genuine memory issues. That is, Smith argues that A.Z. was “able to recall everything
when questioned by the state” but could not “remember anything” during cross-
examination.
{¶ 18} Smith implies that he should have been allowed to use Dr. Connell as a
means to challenge the truthfulness of A.Z.’s testimony, but he does not explain how Dr.
Connell’s testimony would have made it any more or less probable that A.Z. was lying on
the stand. Moreover, we cannot discern any basis to conclude that Dr. Connell’s
testimony would have been relevant for such purposes. Accordingly, to the extent Smith
argues that A.Z. was not being truthful on the stand, Dr. Connell’s testimony was wholly
irrelevant to that issue and therefore properly excluded. Accord State v. Smith, 8th Dist.
Cuyahoga No. 104553, 2017-Ohio-537, ¶ 11, fn. 1 (finding that a hospital record noting
trace amount of alcohol in victim’s blood “cannot be considered as a form of permissible
impeachment with extrinsic evidence [under Evid.R. 616(B)] when the defense’s theory
was not that the victim was incapable of accurately observing, remembering, or relating
because of intoxication, but [rather] that she committed perjury.”).
{¶ 19} On the other hand, Smith also argues that Dr. Connell’s testimony was
admissible to establish A.Z.’s “[in]ability to recall events”—which requires a different
analysis. Although the state argues that the trial court properly “barred testimony related
8.
to the competency of A.Z. to testify,” Smith sought to attack her credibility, rather than
her competency as witness, under Evid.R. 616(B). That is, under Evid.R. 616(B), “[a]
defect of capacity, ability, or opportunity to observe, remember, or relate may be shown
to impeach the witness either by examination of the witness or by extrinsic evidence.”
Such defects are factors “relat[ing] to the credibility of the statements made by [the
witness]” rather than the competency of the witness under Evid.R. 601. Turner v.
Turner, 67 Ohio St.3d 337, 343, 617 N.E.2d 1123 (1993). See also State v. Jacobs, 4th
Dist. Highland No. 11CA26, 2013-Ohio-1502, ¶ 57 (Harsha, J. concurring) (“[E]vidence
of the victim’s drug use and mental illness are probative of the victim’s capacity to
observe, remember or relate * * * events [and] [t]hus, they should have been admitted
under Evid.R. 616(B), which expressly permits the use of extrinsic evidence to challenge
the witness’s credibility on those bases.”).
{¶ 20} Here, even if we assume that Dr. Connell’s testimony regarding A.Z.’s
memory issues was permissible under Evid.R. 616(B) and not unduly prejudicial under
Evid.R. 403—and that the trial court therefore erred when it precluded Dr. Connell from
testifying—Smith has not argued, much less shown, that the outcome of the case would
have been different if Dr. Connell had testified. “Any error * * * which does not affect
substantial rights shall be disregarded.” Crim.R. 52(A). To affect a substantial right
means that “the error must have been prejudicial: It must have affected the outcome of
the [trial] court proceedings.” (Emphasis in the original; quotation omitted.) State v.
Fisher, 99 Ohio St.3d 127, 2003 Ohio-2761, 789 N.E.2d 222, ¶ 7. In this case, most of
9.
the evidence that supported Smith’s convictions did not depend upon the strength of
A.Z.’s memory at all—i.e., Smith testified, himself, that he restrained A.Z. by the neck
and repeatedly punched her in the face, thereby breaking her nose and causing other
injuries. And, as Smith stated to the authorities shortly after the incident, he “smacked
the shit out of” A.Z. by punching her “five or six times with a closed fist.”
{¶ 21} Moreover, Dr. Connell’s testimony would have been cumulative of other
evidence regarding A.Z.’s memory issues. At trial, defense counsel thoroughly
questioned A.Z. about her inability to remember certain events that occurred at the
hospital, as those events were recorded in her hospital records. In the midst of that
testimony, A.Z. openly admitted that she suffered from a longstanding memory problem:
Q: Do you remember when the doctors first came in to talk to you
you were standing in the hallway?
A: I don’t remember. I have significant brain damage from being
abused. * * *
Q: You were not kept over night at the hospital, were you?
A. I don’t think so. I’m not sure. I have no sense of time. * * *
[M]y brain resets every 15 minutes and I forget. Unless it’s like a traumatic
event, I forget.
{¶ 22} So, again, even if we assume that the trial court erred by excluding Dr.
Connell as a witness at trial, the trial court’s error did not prejudice Smith because Dr.
Connell’s testimony was cumulative of other evidence—from A.Z. herself—of her
10.
impaired memory. See State v. Williams, 3d Dist. Marion No. 9-07-61, 2008-Ohio-3887,
¶ 54 (Failure to allow defense to question victim regarding her “ability to remember” did
not amount to plain error where the witness “readily admitted her faulty memory” at
trial); State v. Williams, 6th Dist. Wood No. L-98-1299, 1999 WL 628691, *3 (Aug. 20,
1999) (Any error under Evid.R. 616(B) in barring defendant from using hospital report to
question the victim about her substance abuse on night in question was harmless where
the jury also heard the testimony of a witness that was consistent with that of the victim.).
{¶ 23} For these same reasons, Smith fails to demonstrate that he was prejudiced
by his inability to question A.Z. regarding any drugs she may have been taking at the
time of the incident. That is, when defense counsel was cross-examining A.Z., he asked
what pain medicine she was prescribed after the incident. A.Z. confirmed that she took
Motrin or Ibuprofen for pain, and then stated “I was already on Naproxen.” Counsel
followed up by asking “[w]hat other drugs were you on?” The state objected, and the
trial court sustained the objection.
{¶ 24} On appeal, Smith argues that the answer “may have” established that A.Z.
suffered from other medical conditions that “affected her ability to recall events that
evening.” But, as discussed above, because A.Z.’s memory deficiencies were well-
established at trial—and because there was overwhelming evidence of Smith’s guilt, most
of which came from Smith himself—Smith does not establish that he was prejudiced by
the trial court’s curtailment of that line of questioning on cross.
11.
{¶ 25} For all of these reasons, Smith’s first assignment of error is found not well-
taken.
2. Smith did not receive ineffective assistance of counsel
{¶ 26} To prevail on a claim of ineffective assistance of counsel, Smith 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.” State v.
Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
“‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting
Strickland at 694.
{¶ 27} In his second assignment of error, Smith claims that his trial counsel was
ineffective because he agreed to a self-defense jury instruction under the former version
of R.C. 2901.05—which, he claims, was not applicable to his case because his trial
occurred on August 14, 2019, more than four months after R.C. 2901.05 was amended on
March 28, 2019.
{¶ 28} The former version of R.C. 2901.05 provided, in relevant part, that “[t]he
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
12.
accused.” (Emphasis added.) On March 28, 2019, the statute was amended to shift the
burden of proof, as to the self-defense affirmative defense, to the state. The statute now
provides, in relevant part:
(A) * * * 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 other than self-defense * * * is upon
the accused.
(B)(1) A person is allowed to act in self-defense * * *. 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 * * *, the prosecution
must prove beyond a reasonable doubt that the accused person did not use
the force in self-defense * * *. (Emphasis added.)
{¶ 29} Smith maintains that he should have “receive[d] the benefit” of the change
in the law because he was not tried until August 14, 2019—after the new statute went
into effect. In response, the state counters that Ohio courts have “uniform[ly]” held that
the current version of R.C. 2901.05 does “not * * * apply retroactively to conduct that
occurred before the statute was amended.”
{¶ 30} To the contrary, we find that Ohio courts have uniformly held that the
current version of R.C. 2901.05 does not apply retroactively to appeals in which the
criminal conduct and trial occurred before R.C. 2901.05 was amended on March 28,
13.
2019. See, e.g., State v. Koch, 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 103
(no retroactive application where trial occurred 12 months before R.C. 2901.05 was
amended); State v. Zafar, 10th Dist. Franklin No. 19AP-255, 2020-Ohio-3341, ¶ 32 (no
retroactive application where trial occurred more than two months before R.C. 2901.05
was amended); State v. Whitman, 5th Dist. Stark No. 2019CA00094, 2019-Ohio-4140,
¶ 11 (no retroactive application where trial occurred almost two years before R.C.
2901.05 was amended); State v. Moore, 5th Dist. Muskingum No. CT2019-0030, 2020-
Ohio-342, ¶ 10 (no retroactive application where trial occurred one month before R.C.
2901.05 was amended); State v. Chavez, 3d Dist. Seneca No. 13-19-05, 2020-Ohio-426,
¶ 38, fn. 4 (no retroactive application where R.C. 2901.05 was amended “[s]ubsequent to
Chavez’s trial”); State v. Crowe, 3d Dist. Allen No. 1-19-12, 2019-Ohio-3986, ¶ 15, fn. 1
(applying the former version of R.C. 2901.05 because the statute was amended
“[s]ubsequent to Crowe’s trial”); State v. Henderson, 8th Dist. Cuyahoga No. 108127,
2019-Ohio-4581, ¶ 12, fn. 1 (defendant was tried “several months” before burden shifting
amendment took place and did not assert that the [amended] version of the statute applies
retroactively to him”); In re S.D., 1st Dist. Hamilton Nos. C-180020, C-180021,
C-180022, 2019-WL-2135449, *2, fn. 1 (applying the version of R.C. 2901.05 that was
in effect “at the time that the offenses were committed” but also noting that “the General
Assembly amended Ohio law on self-defense while S.D.’s appeal was pending”); State v.
Tolle, 4th Dist. Adams No. 19CA1095, 2020-Ohio-935, ¶ 18 (noting that “the parties
agreed that the amended version of the statute applied” because the trial was held after
14.
“the amended version of R.C. 2901.05, * * * became effective”); but see State v.
Williams, 3d Dist. Allen No. 1-19-39, 2019-Ohio-5381, ¶ 12, fn. 1 (concluding that the
trial court should have applied the former version of R.C. 2901.05—even though, as
noted earlier in the opinion, trial occurred on May 6, 2019 (after the amendment)—in
reliance upon Koch and Crowe, both of which involved trials that occurred before the
statute was amended).
{¶ 31} We agree with this overwhelming authority from our sister districts. That
is, R.C. 2901.05 does not apply retroactively to cases in which the criminal offense and
trial occurred before R.C. 2901.05 was amended on March 28, 2019.
{¶ 32} But in this case, Smith’s conduct occurred several months before R.C.
2901.05 was amended, and his trial occurred several months after R.C. 2901.05 was
amended. As the Twelfth District recently held, “the burden-shifting changes made by
the legislature to Ohio’s self-defense statute, R.C. 2901.05, through the passage of H.B.
228, appl[y] to all trials that were held or will be held, on or after the effective date of the
statute, March 28, 2019. This holds true regardless of when the offense(s) may have
occurred.” State v. Lewis, 12th Dist. Butler No. CA2019-07-128, 2020-Ohio-3762, ¶ 26,
overruling State v. Debord, 12 Dist. Clinton No. CA2019-03-003, 2020-Ohio-57. Indeed,
the express language of the amended statute plainly applies “at the trial of a person.”
R.C. 2901.05. Accordingly, we hold that amended R.C. 2901.05 applies, prospectively,
to all trials that are held after the effective date of the statute. Smith’s trial counsel was,
therefore, deficient for agreeing to a self-defense jury instruction that relied upon the
15.
former (and inapplicable) version of R.C. 2901.05, which improperly placed the burden
on Smith to prove that he used force in self-defense.
{¶ 33} But, we find that there is no evidence that Smith was prejudiced by
counsel’s deficient performance because the evidence did not support a self-defense jury
instruction. The current version of R.C. 2901.05 states that a self-defense jury instruction
is required if “there is evidence presented that tends to support that the accused person
used the force in self-defense.” (Emphasis added). Evidence “tends to support that the
accused used * * * force in self-defense” when there is “sufficient evidence which, if
believed, would raise a question in the minds of reasonable [jurors] concerning the
existence of such issue.” State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978),
paragraph one of the syllabus. Accord State v. Tolle, 4th Dist. Adams No. 19CA1095,
2020-Ohio-935, ¶ 24 (“[i]n order for evidence that ‘tends’ to support an affirmative
defense, it must be sufficient to raise a question in the mind of a reasonable juror, as is
already required under the existing standard set forth in Melchior.”).
{¶ 34} A defendant uses non-deadly force in self-defense when: (1) the defendant
was not at fault in creating the situation giving rise to the altercation; and (2) the
defendant had reasonable grounds to believe and an honest belief, even though mistaken,
that he was in imminent danger of bodily harm and his only means to protect himself
from such danger was by the use of force not likely to cause death or great bodily harm.
State v. Owens, 6th Dist. Lucas No. L-18-1056, 2019-Ohio-311, ¶ 9 quoting State v.
D.H., 169 Ohio App.3d 798, 2006-Ohio-6953, 865 N.E.2d 90, ¶ 30 (10th Dist); accord
16.
State v. Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-19-06, 13-19-07, 2020-Ohio-426,
¶ 40.
{¶ 35} Here, there is no evidence that “tends to support” that Smith had reasonable
grounds to believe and an honest belief, even though mistaken, that he was in imminent
danger of bodily harm, and that his only means to protect himself from such danger was
by the use of force not likely to cause death or great bodily harm. Id. at ¶ 9. At trial,
Smith admitted that he “could have” walked away from A.Z. after she delivered what he
described as a mere “light blow” to his face. Instead, Smith stated that he restrained A.Z.
by placing her in a chokehold while repeatedly punching her in the face “two or three”
times. On the day of the incident, Smith told the authorities that he had “smacked the shit
out of” A.Z. by punching her “five or six times with a closed fist.” Most notably, Smith
acknowledged at trial that A.Z. had started a fight that she “[could not] win.”
Accordingly, there is no evidence to suggest that Smith had reasonable grounds to believe
and an honest belief that he was imminent danger of bodily harm and that the only means
to protect himself from such danger was by the use of non-deadly force.
{¶ 36} Thus, although trial counsel was deficient when he agreed with the state
that the jury should be instructed under the pre-amendment version of R.C. 2901.05—
which was not applicable to Smith’s trial because it occurred after R.C. 2901.05 was
amended—Smith was not prejudiced by counsel’s deficient performance. That is, Smith
suffered no prejudice because he was not entitled to a self-defense jury instruction under
the current version of R.C. 2901.05 given that there was no evidence that “tend[ed] to
17.
support” that Smith acted in self-defense. Thus, Smith’s second assignment of error is
not well-taken.
Conclusion
{¶ 37} In conclusion, Smith’s first assignment of error is not well-taken because
Smith failed to show the relevancy of the proffered extrinsic evidence regarding A.Z.’s
memory issues. Moreover, even if the trial court erred by excluding that evidence under
Evid.R. 616(B), the trial court’s error did not materially prejudice the outcome of this
case given that it was duplicative of other evidence and the record contained
overwhelming evidence of Smith’s guilt.
{¶ 38} We also find Smith’s second assignment of error not well-taken. Although
Smith’s counsel was deficient for agreeing to a jury instruction under the pre-amendment
version of R.C. 2901.05, Smith failed to establish that he suffered any prejudice as a
result of counsel’s deficient performance. That is, there was no evidence that “tend[ed]
to support” that Smith acted in self-defense—and, accordingly, he was not entitled to a
jury instruction under the current version of R.C. 2901.05.
{¶ 39} The August 16, 2019 judgment of the Wood County Court of Common
Pleas is therefore affirmed. Smith is ordered to pay the costs of this appeal, pursuant to
App.R. 24.
Judgment affirmed.
18.
State v. Smith
C.A. No. WD-19-070
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
19.