Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender BY: Cullen Sweeney Assistant Public Defender.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Andrea N. Isabella Assistant
BEFORE: E.T. Gallagher, J., McCormack, P.J., and S.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, J.
Defendant-appellant, Carlton Junior Shaw, appeals his
convictions and raises the following four assignments of
1. Carlton Shaw's conviction for tampering with evidence
is not supported by legally sufficient evidence as required
by state and federal due process.
2. The verdict form on Count 3 (discharge of a firearm on or
near a prohibited premises) only supports a conviction for a
misdemeanor of the fourth degree because the verdict form did
not state the degree of the offense or include the
aggravating element, as required by R.C. 2945.75.
3. The trial court erred in failing to instruct the jury on
the lesser charge (misdemeanor version) of discharging a
firearm on or near a prohibited premises.
4. Carlton Shaw was denied his right to the effective
assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution when his
attorney failed to ensure that the jury received all the
We find some merit to the appeal, affirm Shaw's tampering
with evidence conviction and modify Shaw's discharging a
firearm on or near a prohibited premises by reducing it from
a third-degree felony to a first-degree misdemeanor.
Facts and Procedural History
Shaw was charged with two counts of felonious assault, one
count of tampering with evidence, and one count of
discharging a firearm on or near a prohibited premises. One
of the victims, Lavonte Hinchen, testified at trial that he
has two children with Whitley Harris, who was living with
Shaw at the time of the events giving rise to this case.
Hinchen testified that although he shared joint custody of
the children with Harris, Harris often refused to relinquish
custody of the children to Hinchen for visitation in
accordance with a joint custody order. Over time, the
animosity between them had become hostile.
Hinchen testified that he often tried to call Harris to
schedule visitation, but she never answered his calls.
According to Harris, Hinchen became increasingly aggressive
to the point that she sought and obtained a temporary
restraining order to prevent Hinchen from coming to her
house. Hinchen, who alleges he was unaware of the temporary
restraining order, asked his brother, Anthony Lee, to
accompany him to pick up his children from Harris's home
on December 20, 2015.
Lee drove separately and met Hinchen at Harris's
apartment, which was located inside a multifamily house.
Hinchen knocked on the door, and Harris refused to allow him
to take the children, claiming she had a protective order
that prevented him from coming to her home. Lee suggested to
Hinchen that he go to the police department and ask for
assistance in enforcing the child custody order. Hinchen
agreed and set off to the police station.
Meanwhile, Harris exited the building and began speaking with
Lee, with whom she had a better relationship. While they were
talking, Shaw appeared "out of nowhere, " stuck a
gun in his face, and threatened "I'm about to body
you." (Tr. 331.) Lee testified that Shaw was
"highly agitated" and was "swaying side to
side" with his finger on the gun's trigger. Harris
told Shaw, "He is a man of God. He is a minister. * * *
Don't shoot him." (Tr. 337.) Lee, who was a
psycho-educational-juvenile therapist and an ordained
clergyman, was trained to counsel juveniles with oppositional
defiance disorder and PTSD. He calmly spoke to Shaw in an
attempt to diffuse the situation. (Tr. 313.)
Shaw began to regain composure, but Hinchen returned to the
scene to see why Lee was not following him to the police
station. When Shaw saw Hinchen, he became agitated again. Lee
pushed Shaw behind the apartment building to remove him from
Hinchen's sight. Shaw seemed to be listening to Lee, who
was still trying to calm him down, but when Hinchen appeared
from behind the building, Shaw "flared up" again.
(Tr. 345.) Lee hugged Shaw to restrain him, but Shaw grabbed
Lee's wrist, on which he had recently had surgery, and
Lee recoiled in pain. Lee could not stop Shaw so he yelled to
Hinchen to run. (Tr. 347.) According to Lee, Shaw pointed the
pistol in Hinchen's direction and pulled the trigger. The
gun misfired at first, but Shaw eventually fired three to
Lee, who had a concealed carry permit, lifted his gun in
self-defense but realized the slide on Shaw's gun was
open, which meant that it was out of ammunition. Shaw
"took off running, " and Lee walked back to the
front of the building where Harris was "crying
hysterically" in the front yard. (Tr. 350.) Lee told
Harris to secure the children inside and called 911. (Tr.
Lee began driving to the nearest police station and happened
upon a police cruiser on a nearby street. After Lee told the
police what happened, they activated their lights and drove
to Harris's apartment. Meanwhile, Hinchen called the
police and reported that he had seen Shaw aim a gun at
Lee's head. Harris also called the police to report that
Hinchen was at her door in violation of the protection order.
Soon there were ten police officers on the scene.
Sgt. William Mokshefsky questioned Shaw at the scene. Shaw
denied he had a gun or shot a gun. Yet, while police were
detaining Shaw, other officers discovered his gun hidden in a
wall in the basement of the apartment building. When
Detective Arrif Shahid questioned Shaw the following day,
Shaw admitted he owned a gun and that he fired it, but
claimed he only fired a single warning shot into the ground.
At trial, Shaw admitted he was angry and wanted to fight
Hinchen. He also admitted that he possessed a gun when he
exited the apartment and confronted Lee. Shaw explained that
two weeks earlier, Hinchen aggressively confronted him and
Harris at a McDonald's drive-thru. Hinchen pulled his car
up next to Harris's car in the drive-thru. He knocked on
the window and attempted to open the door to Harris's
car. When the two cars were stopped at a red light at the end
of the McDonald's driveway, Shaw exited Harris's car
and approached Hinchen, who exited his car. Shaw testified
that because he observed Hinchen open his trunk and reach for
a firearm, he got back in Harris's car and they drove
Shaw testified that he feared for his life when Hinchen came
to Harris's apartment because of the incident at the
McDonald's. Although he admitted that he wanted to fight
Hinchen, he testified that he held his gun solely for
self-defense and only fired a single warning shot. He never
intended to shoot Lee or Hinchen.
The jury acquitted Shaw of both counts of felonious assault
but found him guilty of discharging a firearm on or near a
prohibited premises and tampering with evidence. The court
sentenced him to a three-year prison term on the firearm
specifications and community control sanctions on the
underlying offenses. (Tr. 889.) Shaw now appeals his