[Cite as State v. Smith, 2020-Ohio-5310.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2020CA00065
:
CHRISTIN SHAMAR SMITH :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2019CR2033
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 16, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. BERNARD L. HUNT
STARK CO. PROSECUTOR 2395 McGinty Road N.W.
KATHLEEN O. TATARSKY North Canton, OH 44720
110 Central Plaza South, Ste. 510
Canton, OH 44702
Stark County, Case No. 2020CA00065 2
Delaney, J.
{¶1} Appellant Christin Shamar Smith appeals from the February 24, 2020
Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On August 27, 2019, Tevonn Bowers received a text message from Marcia
Harris, the mother of his two daughters. Harris asked him to babysit his daughters and
stated that if he did not, she would ask Defendant-Appellant Christin Smith to watch them.
Bowers replied, saying he did not want the appellant around his children. Bowers then
called his brother, Markelle, to pick him up and take him to the Harris residence.
{¶3} Both brothers have concealed carry license (C.C.W.) and were carrying
their weapons when they arrived at the house. Bowers then instructed his brother to stay
in the vehicle as he approached the porch where the appellant and Harris sat.
{¶4} At trial, Bowers testified that after approximately five seconds of
conversation with Harris, the appellant came down off the porch, and hit him on the chin.
According to Bowers, the appellant then hit Bowers again, in the head with his gun, which
went off upon contact. Bowers then grabbed the appellant’s arm and gun and held him.
Bowers’s brother emerged from the vehicle, and Bowers let the appellant go. Bowers then
drew his own gun.
{¶5} The appellant also testified, but instead claimed Bowers pulled out his own
gun which fell and also threw the first punch. The appellant admitted to carrying a firearm
but denied that the he used his weapon to strike Bowers. The appellant also admitted his
gun went off as they fought.
Stark County, Case No. 2020CA00065 3
{¶6} Harris’s brother, Corlin Osteen, then came out from the garage after hearing
the firearm go off. Osteen questioned Bowers as to why he would bring a gun to pick up
his children and told both Bowers and the appellant to leave.
{¶7} Appellant then ran to the back of the house. Bowers and his brother also
left the scene temporarily, but returned to retrieve his hat which he left behind. By the time
Bowers returned, the police had arrived in response to a Shot Spotter Notice.
{¶8} Officer Kyle Slone arrived at the scene and then spoke to Bowers. Officer
Slone contacted Brianna Parsons, the appellant’s Parole Officer, in an effort to locate him.
Parsons, who had been supervising the appellant for four months for previous
convictions, testified at trial that the appellant’s GPS monitor bracelet was cut off and
found at fourth and Lloyd Court. No shell casings were found at the scene.
{¶9} Bowers did not leave the scene with his children. Bowers also did not
sustain injuries or receive treatment after being struck by the appellant.
{¶10} On November 13, 2019, the appellant was indicted upon one count of
Felonious Assault pursuant to R.C. 2903.11(A)(2)(D)(1)(A), a felony of the second degree
[Count I] and one count of Having Weapons While Under Disability pursuant to
2923.13(A)(2)(B), a felony of the third degree [Count II]. Count I was accompanied by a
firearm specification pursuant to R.C. 2941.145(A). Appellant entered pleas of not guilty
and the matter proceeded to trial by jury. The trial court found the appellant guilty upon
Count II and not guilty upon Count I. Appellant was sentenced to thirty-six months in
prison. He now appeals.
{¶11} Appellant raises two assignments of error:
Stark County, Case No. 2020CA00065 4
{¶12} “I. THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
{¶13} “II. THE DEFENDANT WAS DENIED HIS EFFECTIVE ASSISTANCE OF
COUNSEL.”
ANALYSIS
I.
{¶14} In his first assignment of error, the appellant argues the evidence introduced
at trial by the State was of a limited nature and not sufficient to prove guilt in regard to the
verdict of Having Weapons While Under Disability. We disagree.
{¶15} The Ohio Supreme Court set forth the standard of review for when a claim
of insufficiency of evidence is made in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991). The Ohio Supreme Court held:
An appellate court’s function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. 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.” Id. at
paragraph two of the syllabus.
Stark County, Case No. 2020CA00065 5
{¶16} The appellant argues the State’s evidence at trial was insufficient because
no weapon was produced, no shell casings were found, and there is conflicting testimony
from Bowers’s brother.
{¶17} When considering such a claim, a reviewing court must “examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses and determine whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541
(1997), citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶18} According to R.C. 2923.13, no person under disability, unless relieved from
disability under operation of law or legal process shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance. Having Weapons While Under Disability includes
those who are convicted of a felony offense of violence.
{¶19} The evidence at trial demonstrated that appellant had a prior conviction for
felonious assault, in addition to five prior felonies. Appellant was on parole at the time of
the incident and was just released from prison in April, 2019.
{¶20} In this matter, the appellant does not argue he had been relieved from
disability under operation of law, but instead asserts no weapon was introduced at trial
that belonged to him. However, at trial the appellant admitted to having a weapon during
the incident. An admission to possessing a gun while having a prior conviction of felonious
assault would convince any trier of fact the essential elements of Having Weapons Under
Disability have been met.
Stark County, Case No. 2020CA00065 6
{¶21} After having examined the entire record in the light most favorable to the
prosecution, including the appellant’s admission to possessing a weapon in violation of
the law, we cannot conclude the trier of fact lost their way and created a manifest
miscarriage of justice when asserting the appellant was guilty of Having Weapons While
Under Disability.
II.
{¶22} In his second assignment of error, the appellant argues the performance of
his trial counsel was deficient and resulted in his prejudice because his Parole Officer,
Briana Parsons, was able to testify against him at trial and because Marcia Harris, his
former girlfriend, was not called as a witness. Again, we disagree.
{¶23} To succeed on a claim for ineffective assistance of counsel, a defendant
must satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show the trial counsel acted
incompetently. Second, the defendant must show “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
{¶24} In this instance, the appellant assumes the testimony offered at trial by his
parole officer, Brianna Parsons, regarding his prior convictions, and his cut-off and
discarded GPS ankle monitor prejudiced the jury. His trial counsel also did not take the
opportunity to cross-examine Parsons. The appellant claims this error may have led to
the appellant’s decision to testify to bolster his case.
{¶25} While it may be true that the appellant’s counsel errored by failing to prevent
Parson’s testimony, the defense presents no evidence that having done so would have
Stark County, Case No. 2020CA00065 7
yielded a different outcome at trial. The court instructed the jury to disregard Parsons’s
testimony regarding the bracelet when considering the two charges against the
defendant, and there is no evidence presented to indicate the jury failed to follow this
instruction in a way that prejudiced him.
{¶26} The appellant also asserts he was prejudiced by the failure of his counsel
to call Marcia Harris to testify on his behalf, stating it was below the objective acceptable
standards under State v. Lytle, 48 Ohio St. 2d 391, 358 N.E. 2d 623 (1976).
{¶27} Again, there is no reasoning provided as to why calling Harris as a witness
would have resulted in a different ruling by the jury. The defense counsel did in fact call
Harris’s brother as a witness, and as a witness he did provide testimony that could have
led a jury to conclude felonious assault had not been committed. There is no argument to
the contrary that testimony from Harris would have led to a different outcome under
Strickland v. Washington.
Stark County, Case No. 2020CA00065 8
CONCLUSION
{¶28} Appellant’s first and second assignments of error are overruled. The
judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.