State v. Smith
| Citation | 2022 Ohio 1984 |
| Decision Date | 13 June 2022 |
| Docket Number | CA2021-02-009 |
| Parties | STATE OF OHIO, Appellee, v. JERRY M. SMITH, Appellant. |
| Court | United States Court of Appeals (Ohio) |
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2020CR0332
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.
W Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant Public Defender, for appellant.
{¶ 1} Jerry Smith appeals from his conviction for assault in the Clermont County Court of Common Pleas. For the reasons described below, we affirm Smith's conviction.
{¶ 2} In April 2020, a Clermont County grand jury indicted Smith on one count of assault and one count of aggravated robbery. The indictment stemmed from allegations that Smith charged a sheriff's deputy, grabbed her wrist, and attempted to take her service weapon. The matter proceeded to a jury trial.
{¶ 3} The state called seven witnesses at trial. We will briefly summarize their testimony.
{¶ 4} Shaughn Wood testified that he resides on Sodom Road. On March 28, 2020, he was outside and had just finished cutting the grass when he saw a man - who he identified at trial as Smith - standing in front of him. Smith told Wood his vehicle was in a ditch and asked him for help getting it out. Wood told Smith he could not help him. Smith stood around "for a minute" and then repeated that he needed help. Wood offered to call a tow truck. Smith did not respond and instead just "kept wandering around."
{¶ 5} Wood then went inside and told his father-in-law, Bobby Kelly, that there was a man outside who said he was "stuck and needs to be pulled out." Wood and Kelly then walked outside and found Smith inside Kelly's garage. Kelly told Smith that they could not help him with his vehicle. Smith said, "okay," but would not look at them and just kept standing in the garage, looking around. Smith then walked out of the garage and then back into it. Kelly then told Smith that he needed to leave the garage.
{¶ 6} Smith did not leave so Kelly told Smith he would call 9-1-1. At that point, Smith began to walk away. However, Smith had dropped "something" at an earlier point in the encounter and as Smith was leaving, he went to pick up the item. As he was picking up the item, Wood noticed a "black shadow of like the back of a gun on the back of his waistband." Wood said it looked to him like a Glock. Wood said he was familiar with guns.
{¶ 7} Wood testified that Smith began backing up, away from Wood and Kelly, and then began yelling, "don't shoot me, don't shoot me!" Smith reached behind his back and then jumped out of sight near a camper on the property. That was the last time Wood saw Smith.
{¶ 8} Wood went inside and found his mother-in-law on the phone with 9-1 -1. The state played the 9-1-1 call at trial. On it, Wood's mother-in-law states that "a guy pulled a gun on my husband" and that he was "still there."
{¶ 9} Wood then got on the 9-1-1 call. He told the dispatcher that a man came down the driveway saying that he was stuck in a ditch and asking if they could pull his vehicle out and that they had told him "No." Wood said that the man would not leave. Wood stated that the man "pulled a 9-millimeter out of his back and pointed it at my father-in-law."
{¶ 10} Wood described the man as wearing a black shirt with blue lettering, black hat, blue jeans, and tan work boots. Wood also described the man as carrying a cell phone, two chargers, and a Mountain Dew bottle.
{¶ 11} After playing the 9-1-1 call, the prosecutor asked Wood about his statement on the 9-1 -1 call that the man was carrying a gun. Wood stated, "at the time of the moment, I wasn't sure if it was the gun or if it was his cell phone." On cross-examination, Wood admitted that he was "wrong" when he told the dispatcher that the man had pointed a gun at his father-in-law.
{¶ 12} Bobby Kelly testified that on March 28, 2020, he was inside his home when Wood entered and told him, "there's a guy out there." Kelly walked into his garage and found Smith. Smith told Kelly he had "ran off the road" and asked if Kelly could pull him out. Kelly replied "no," and explained that his tractor was broken.
{¶ 13} Smith told Kelly he lived at a nearby house. This statement "threw a red flag," because Kelly knew who had resided at that house since the 1970s. Kelly told Smith, "I can't help you."
{¶ 14} Smith would not look at Kelly while he was in the garage. He just "kept looking at everything in my garage." Kelly felt that Smith was "looking for what I've got in the house."
{¶ 15} Kelly asked Smith to leave. In response, Smith just began fumbling with his cell phone and Mountain Dew and began mumbling. Smith eventually walked out of the garage but then walked back in.
{¶ 16} Kelly said that Smith then suddenly "jumped in front of my boat and said, don't shoot me in the back, don't shoot me in the back!" Kelly again told him to leave. Smith then reached behind his back, and then, "jumped behind my camper." Kelly stated that because of the way Smith was acting and reaching behind his back, he put a shell in his shotgun.
{¶ 17} On cross-examination, Kelly admitted he never saw a gun in Smith's possession but referred to Smith's suggestive action of reaching behind his back.
{¶ 18} Daryel Gillman testified that he resides on Sodom Road. On March 28, 2020, Gillman's wife saw a man in the backyard talking on a cell phone. Gillman went to his back door and asked the man if he could help him. The man said "yeah," asked him if he had a truck, and said, "we need to be pulled out of a ditch."
{¶ 19} Gillman replied that he had nothing that would help pull the man's vehicle out of a ditch but asked the man if he had asked "Mr. Napier." The man responded, "well, they're over there now."
{¶ 20} Gillman went back inside his house to put his shoes on. He then walked over to Napier's driveway where Smith and Napier were standing together. Gillman asked Smith where his "buddy" went.[1] Smith said, "he's messed up, I don't know." Gillman recalled Napier asking Smith, "what are you going to do about my yard." Smith responded, "we'll be back and fix that."
{¶ 21} Smith then looked down the road and said, "the State Highway Patrol is coming." However, the approaching vehicle was driven by a sheriff's deputy, not a state highway patrol officer. The sheriff's deputy pulled in front of Napier's driveway and asked if the police had been there yet. Gillman replied, "no, not that I know of." The deputy then got out of the vehicle, walked to the front of the vehicle, and told Smith to put his hands in the air. Smith said, "what's going on?" The deputy repeated her command to put his hands in the air. She had her hand on her gun.
{¶ 22} Gillman stated that Smith put his hands in the air and was holding his cell phone in his right hand. The deputy began to walk towards Smith. When she was about five feet away, Smith dropped his hands. The deputy "took off running" and Smith was "right behind her," "took after her," and was "chasing her." Smith had his hands out in front of him and was "running to her."
{¶ 23} Smith and the deputy went around the deputy's vehicle. Smith was "fairly close" to her at that point. Gillman could not see them when they went around the vehicle. Gillman stated, "the next thing I know, there was shots."
{¶ 24} Dennie Napier stated that he lived at 3517 Sodom Road. On a day at the end of March 2020, he was watching television. He recalled the doorbell ringing and a man at the door who said he'd "run off the road."[2] The man did not ask for help and merely stated that he ran off the road. Napier replied, "Okay," closed the door, and went back to watching television.
{¶ 25} Approximately 20 minutes later he looked out the window and saw a Bethel, Ohio police vehicle travel by. This made him think that the man was gone. So, he went outside to retrieve his mail.
{¶ 26} As he walked out to his mailbox, he turned around and looked back towards his home. He observed that there was a vehicle on the side of his house, in his yard.[3] He then saw the same man start walking towards him. Napier told the man,
{¶ 27} At that point, Gillman appeared. Napier then said to the man, "what are you going to do about my yard?" The man replied, "I'll fix it."
{¶ 28} At that point, Napier stated that a sheriff's deputy was driving towards them. The man said, "I don't want anything to do with this." The deputy got out of her vehicle and moved to the front of the vehicle. She pulled her pistol and said, "put your hand over your head and don't move." Napier indicated that the man was standing about 12 to 15 feet away from the deputy at this point.
{¶ 29} Napier said that the man put his hands up, then just "took off running at her." He ran at the deputy with his hands up the entire time, then he "put his hands on her," "up on her shoulders." He was "moving as fast, as much speed as he could pick up in that distance." Napier stated that the deputy's first shot occurred in front of the sheriff's vehicle.
{¶ 30} Deputy Carly Gebhardt testified that she was employed as a deputy sheriff with the Clermont County Sheriff's Office and had been so employed for 12 years. Most of that time she had been assigned to road patrol.
{¶ 31} On March 28, 2020, she was on road patrol. She received a dispatch ...
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