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State v. Eddy

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 30, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TERRELL S. EDDY DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-16-602449-A Application for Reopening Motion No. 506663

          ATTORNEY FOR APPELLANT Paul A. Mancino, Jr. Mancino Mancino & Mancino

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Gregory J. Ochocki Assistant County Prosecutor

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Terrell S. Eddy has filed a timely application for reopening pursuant to App.R. 26(B). Eddy is attempting to reopen the appellate judgment, rendered in State v. Eddy, 8th Dist. Cuyahoga No. 104417, 2017-Ohio-741, that affirmed his convictions for the offenses of felonious assault in violation of R.C. 2903.11(A)(2); discharge of a firearm on or near prohibited places in violation of R.C. 2923.162(A)(3); trafficking (between five and ten grams of cocaine) in violation of R.C. 2925.03(A)(2); trafficking (less than 200 grams of marijuana) in violation of R.C. 2925.03(A)(2); drug possession (between five and ten grams of cocaine) in violation of R.C. 2925.11(A); minor drug possession (less than 100 grams of marijuana); and possessing criminal tools in violation of R.C. 2923.24(A). The convictions carried several specifications attached to them, including one-year and three-year firearm specifications, and various forfeiture of property specifications (weapons and drug-related items). We decline to reopen Eddy's original appeal.

         STANDARD OF REVIEW

         {¶2} In order to establish a claim of ineffective assistance of appellate counsel, Eddy is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).

         {¶3} In Strickland, the United States Supreme Court held that a court's scrutiny of an attorney's work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland.

         FIRST PROPOSED ASSIGNMENT OF ERROR

         {¶4} Eddy has raised ten proposed assignments of error in support of his application for reopening. Eddy's initial proposed assignment of error is that:

Defendant was denied due process of law when the court improperly instructed the jury concerning flight.

         {¶5} Eddy argues that the jury instruction, with regard to flight, was defective because the trial court failed to state that the flight had to be "immediately" after the offense.

         {¶6} The trial court instructed the jury on flight and stated that:

There may be evidence in this case to indicate that the defendant fled from the scene of the crime. Flight does not in and of itself raise the presumption of guilt, but it may show a consciousness of guilt or guilty connection with the crime.
If you find that the defendant did flee from the scene of the crime, you may consider this circumstance in your consideration of the guilt or innocence of the offender.

         {¶7} An appellant may not assign as error the giving of a jury instruction unless an objection is made before the jury retires and further objects by specifically stating on the record the matter objected to and the grounds for the objection. Crim.R. 30(A). Herein, Eddy failed to object at trial to the trial court's jury instruction as to flight and, therefore, has waived all but plain error on appeal. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990); State v. Burns, 8th Dist. Cuyahoga No. 95465, 2011-Ohio-4230; Crim.R. 52(B).

         {¶8} An improper or erroneous jury instruction does not constitute plain error under Crim.R. 52(B) unless, but for the error, the outcome of the trial would clearly have been different. State v. Cooperrider, 4 Ohio St.3d 226, 448 N.E.2d 452 (1983). Assuming that the trial court's jury instruction constituted error, we cannot find that Eddy has demonstrated prejudice such that a manifest miscarriage of justice has occurred. The jury instruction provided by the trial court allowed the jury to reach its own conclusions on the issue of flight and thus consider Eddy's motivation for leaving the scene of the charged criminal offenses. Under such circumstances, this court has declined to find plain error. State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583.

         {¶9} It must also be noted that the decision to give a jury instruction rests within the sound discretion of the trial court. State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, citing State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3d Dist.1993). We find that the trial court did not abuse its discretion in instructing the jury with regard to the issue of flight. Eddy, through his first proposed assignment of error, has failed to demonstrate that the performance of his appellate counsel was deficient and that he was prejudiced.

         SECOND PROPOSED ASSIGNMENT OF ERROR

         Defendant was denied due process of law when the court instructed on self-defense and gave a conflicting instruction with reference to leaving the scene.

         {¶10} Eddy argues that appellate counsel was deficient for failing to argue inconsistent jury instruction with regard to the issue of flight and self-defense.

         {¶11} The failure of Eddy to object to the trial court's jury instruction, with regard to flight and self-defense, waived all error except for plain error. We find no plain error because Eddy has failed to demonstrate prejudice such that a manifest miscarriage of justice has occurred. Jackson, supra. It should also be noted that Eddy argued self-defense through his testimony and that the trial court did not abuse its discretion in instructing the jury with regard to the issue of self-defense. Howard; Martens. Eddy, through his second proposed assignment of error, has failed to demonstrate that the performance of his appellate counsel was deficient and that he was prejudiced on appeal.

         THIRD PROPOSED ASSIGNMENT OF ERROR

         Defendant was denied due process of law when the court denied a motion for judgment of acquittal when no alleged victim appeared to testify.

          {¶12} Eddy argues that the trial court's jury instruction with regard to the offense of felonious assault was deficient because the jury instruction failed to include the identity of the victim.

         {¶13} Eddy failed to object to the jury instruction, thus waiving all but plain error. Howard, 8th Dist. Cuyahoga No. 10094; Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3d Dist.1993). In addition, the identity of the victim is not an element of the offense of felonious assault. State v. Johnson, 6th Dist. Lucas No. L-13-1267, 2016-Ohio-1394. Thus, the trial court was not required to include the identity of the victim in the jury instruction provided to the jury with regard to the offense of felonious assault. Eddy, through his third proposed assignment of error, has failed to demonstrate that the performance of his appellate counsel was deficient and that he was prejudiced on appeal.

         FOURTH PROPOSED ASSIGNMENT OF ERROR

         Defendant was denied due process of law when he was convicted of discharging a firearm over a public road or highway.

         {¶14} Eddy argues that he was improperly convicted of the offense of discharging a firearm over a public road or highway, as charged in Count 2 of the indictment, because the ...


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