State v. Smith

• Docket Number: 14-22-16
• Decision Date: 28 August 2023
• Citation: 2023 Ohio 3015
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE/ CROSS-APPELLANT, v. RICHARD ALLEN SMITH, JR., DEFENDANT-APPELLANT/ CROSS-APPELLEE.
• Court: Ohio Court of Appeals

1

2023-Ohio-3015

STATE OF OHIO, PLAINTIFF-APPELLEE/ CROSS-APPELLANT, v. RICHARD ALLEN SMITH, JR., DEFENDANT-APPELLANT/ CROSS-APPELLEE.

No. 14-22-16

Court of Appeals of Ohio, Third District, Union

August 28, 2023

Appeal from Union County Common Pleas Court Trial Court No 2021-CR-0134

APPEARANCES:

Kyle Phillips and Rocky Ratliff for Appellant/Cross-Appellee

Andrew M. Bigler and Samantha Hobbs for Cross-Appellant/Appellee

OPINION

WILLAMOWSKI, J.

{¶1} Defendant-appellant, cross-appellee Richard A. Smith, Jr. ("Richard") appeals the judgment of the Union County Court of Common Pleas, arguing that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence; that the trial court gave erroneous jury instructions on self-defense; that the trial court erred by admitting other acts evidence; and that the trial court erred by granting the State's motions in limine.

{¶2} The State of Ohio as plaintiff-appellee, cross-appellant appeals the judgment of the Union County Court of Common Pleas, arguing that the trial court erred by imposing a sentence for only one of Richard's firearm specifications. For the reasons set forth below, the judgment of the trial court is affirmed in part and reversed in part.

Facts and Procedural History

{¶3} At roughly 5:02 P.M. on July 11, 2021, Trooper Daniel Z Voght ("Trooper Voght") of Ohio State Highway Patrol went to a location on State Route 37 where a car had reportedly crashed in a field. Richard was the driver of the wrecked vehicle. He indicated that he had missed a stop sign and drove into the field. No other vehicles were involved in this accident, but the only passenger in Richard's vehicle, Curtis Slone ("Curtis"), sustained an injury to his head in the crash. Curtis was Richard's cousin.

{¶4} Trooper Voght detected the odor of an alcoholic beverage coming from Richard and noticed that he was unsteady on his feet. A bottle of black velvet was also located in the vehicle. Trooper Voght then had Richard perform several field sobriety tests after which Richard was placed under arrest for operating a vehicle impaired. Curtis contacted a relative to secure a ride home. In response, Richard's daughter Tiara Smith ("Tiara"), drove with Richard's nephew, Timothy Smith ("Timothy"), to the scene of the accident. Richard was released to Tiara from police custody at 6:30 P.M.

{¶5} A tow truck came to transport the wrecked vehicle back to the house where Richard lived with his mother, Martha Smith ("Martha"), and Timothy. Curtis was unsteady on his feet due to a preexisting health condition and had to be helped into the car that Timothy and Tiara had brought to the scene of the accident. Curtis's head was cut and bleeding. Curtis, Timothy, Tiara, and Richard then drove together back to Curtis's house, which was located a few doors down from where Richard lived.

{¶6} Timothy was upset with Richard for getting into an accident that injured Curtis. On the ride to Curtis's house Timothy expressed his frustrations to Richard. Timothy later testified that he was upset because did not believe that Richard was showing any remorse for his actions. Timothy further explained that the vehicle that was wrecked in the accident had belonged to Richard's father and, for this reason, had sentimental value to the family.

{¶7} After arriving at Curtis's home, Richard got out of the vehicle and walked down the street to his house so that he could receive the wrecked vehicle from the tow truck. Timothy initially indicated that he was going to take a walk but ended up helping Curtis into his house. Inside, Timothy began tending to Curtis's bleeding head wound. After the tow truck arrived where Richard lived, Richard grabbed a nine-millimeter handgun out of the wrecked vehicle. He then put this handgun in his pocket and grabbed a twenty-two-caliber rifle from inside his house before he began walking back towards Curtis's house.

{¶8} On his arrival, Richard then walked up a ramp outside of Curtis's door and went inside. Once inside, Richard saw Timothy tending to Curtis's wound and trying to talk Curtis into seeking medical treatment at the hospital. Jimmie Slone ("Jimmie"), who is Curtis's brother, was also sitting in the room. Jimmie testified that Richard told Timothy that Curtis did not need to be "babied." (Mar. 28 Tr. 122). At this point, Timothy and Richard began to argue.

{¶9} Timothy later testified that, at this point, he "challenged him [Richard] to go outside," saying he "wanted to fight him." (Mar. 29 Tr. 124). He stated that Richard went outside in response to this challenge and that he then followed Richard out the door. However, Richard testified that he walked outside to finish his cigarette, leaving the house after Timothy had gone outside. He further stated that he did not agree to fight Timothy. Jimmie testified that Timothy went outside first, but he did not know why Timothy or Richard left the house.

{¶10} Timothy testified that, once they were outside, he "told him [Richard] to put his hands up." (Mar. 29 Tr. 145). He testified that Richard then put his hands up. Timothy then shoved Richard. From inside the house, Jimmie could see Richard's "head going by the window" as he stumbled backwards and fell to the ground. (Mar. 29 Tr. 124). While he was still lying on the ground, Richard drew the handgun out of his pocket and shot Timothy in the stomach.

{¶11} When he heard the gunshot, Jimmie jumped out of his chair and went outside. Jimmie then took the handgun away from Richard while he was still on the ground and called 9-1-1. Timothy testified that he told Richard that he "killed" him. (Mar. 29 Tr. 131). He testified that, in response, Richard said, "bye. I don't care," as he walked back into the house. (Mar. 29 Tr. 131). Richard also told Jimmie, "I shot the motherf**ker." (Mar. 28 Tr. 132). After Richard went into the house, he grabbed his rifle and tried to leave. However, Jimmie took the rifle away from him. Richard's relatives prevented him from returning to his home and kept him on the premises.

{¶12} Timothy testified that he believed that he was going to die. He stated that he tried to call his daughter on his cell phone but his hands were too "shaky" to manipulate his phone. (Mar. 29 Tr. 127). One of his relatives then got him a chair. Shortly thereafter, the police arrived at the house and secured the scene. At that time, Timothy was sitting in a chair outside. He was ultimately transported via helicopter to a hospital where he underwent surgery. Timothy spent roughly three weeks in the hospital recovering from this procedure. The police recovered two guns from the scene and took Richard into custody.

{¶13} On July 15, 2021, Richard was indicted on one count of attempted murder in violation of R.C. 2923.02(A), a felony of the first degree; two counts of felonious assault in violation of R.C. 2903.11(A)(1), felonies of the second degree; one count of aggravated assault in violation of R.C. 2903.12(A)(2), a felony of the fourth degree; one count of domestic violence in violation of R.C. 2919.25(A), a felony of the fourth degree; one count of having weapons while under disability in violation of R.C. 2923.13(A)(4), a felony of the third degree; and one count of using weapons while intoxicated in violation of R.C. 2923.15(A), a misdemeanor of the first degree. The first five of these counts were charged with three-year firearm specifications under R.C. 2941.145(A).

{¶14} A jury trial was held from March 28 to 30, 2022. Both Richard and Timothy testified as witnesses. During this proceeding, the trial court granted the State's motion to dismiss the count of aggravated assault. The jurors could not reach a verdict on the charge of having weapons under a disability. For this reason, the trial court declared a mistrial on this charge. The jury returned verdicts of guilty on the remaining five charges and the four associated gun specifications.

{¶15} At sentencing, the trial court concluded that Richard's convictions for felonious assault merged with his convictions for domestic violence and attempted murder. The State elected to proceed to sentencing on the conviction for attempted murder. The trial court then imposed sentences for attempted murder, for using weapons while intoxicated, and for one three-year firearm specification.

{¶16} Richard filed his notice of appeal on June 28, 2022. On appeal, he raises the following assignments of error:

First Assignment of Error

The trial court erred to the prejudice of defendant-appellant Richard Allen Smith Jr. by finding defendant-appellant did not act in self defense as those verdicts were against the manifest weight of the evidence and insufficient as a matter of law to support those verdicts.

Second Assignment of Error

The trial court erred to the prejudice of defendant-appellant Richard Allen Smith Jr. when the court incorrectly instructed the jury on the elements of self defense.

Third Assignment of Error

The trial court erred as a matter of law to the substantial prejudice of defendant-appellant Richard Allen Smith Jr. by allowing evidence to be admitted regarding field sobriety tests taken by defendant-appellant in another incident over two (2) hours before this incident occurred.

Fourth Assignment of Error

The trial court erred as a matter of law to the substantial prejudice of defendant-appellant Richard Allen Smith Jr. when it granted plaintiff-appellee's motions in limine without conducting a hearing or permitting defendant-appellant an opportunity to respond, which limited defendant-appellant from presenting taped phone call evidence.

On July 1, 2022, the State of Ohio filed notice of cross-appeal. The State raises the following assignment of error:

The...