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State v. Shaw

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 31, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-602195-A

          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 Prosecuting Attorney.

          BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.



         {¶1} Defendant-appellant, Carlton Junior Shaw, appeals his convictions and raises the following four assignments of error:

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 necessary instructions.

         {¶2} 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.

         I. Facts and Procedural History

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.)

         {¶7} 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 four shots.

         {¶8} 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. 350.)

         {¶9} 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.

         {¶10} 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.

         {¶11} 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 away.

         {¶12} 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.

         {¶13} 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 convictions.

         II. ...

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