O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
Chinn, pro se.
APPLICATION TO REOPEN
1} A jury convicted defendant-appellant, Angelo R.
Chinn, of felonious assault under R.C. 2903.11 and attempted
murder under R.C. 2903.02, both with firearm, drive-by, and
repeat offender specifications. Chinn appealed and this court
affirmed the conviction. State v. Chinn, 10th Dist.
No. 16AP-602, 2017-Ohio-4408. Chinn has filed an application
to reopen his direct appeal under App.R. 26(B), asserting
ineffective assistance of appellate counsel. For the reasons
set forth below, we deny the application.
FACTUAL AND PROCEDURAL BACKGROUND
2} We incorporate the recitation of the facts giving
rise to Chinn's indictment and his trial from the direct
A grand jury indicted Chinn on July 14, 2015, on one count of
felonious assault under R.C. 2903.11 and one count of
attempted murder under R.C. 2923.02. Because the indictment
alleged that Chinn had committed the offenses by discharging
a firearm from a vehicle and had previous violent felony
convictions, the counts carried firearm specifications under
R.C. 2941.145(A), drive-by shooting specifications under R.C.
2941.146(A), and repeat violent offender specifications under
R.C. 2941.149(A). (July 14, 2015 Indictment.)
Trial commenced on June 20, 2016. The prosecution's first
witness was Phyllis Regina James-Amir, who had met Chinn at
their place of employment and began a relationship with him.
(Tr. at 32-34.) James-Amir testified that she had been
sleeping in her car at her place of employment before her
shift on the night of July 4, 2015, when Chinn approached and
began pounding on the car window. (Tr. at 42-44.) She started
the car and as she began to drive away, Chinn tried to stop
her by placing his hands on the hood of the car. (Tr. at
45-46.) Chinn got in his car and followed her at a high speed
and James-Amir tried to evade him. (Tr. at 45-47.) Suddenly
her car window blew out after a sound like a tire blowing
out, and Chinn sped away. (Tr. at 47-49.) She realized that
Chinn had fired a weapon at her. James-Amir pulled her car
into a strip mall and called 911. (Tr. at 49-50.)
Officer Zachary West responded to the 911 call. (Tr. at 80.)
He testified that James-Amir was shaken and frightened, and
had to be escorted out of her vehicle. He stated that
"the driver's side window was shattered completely
out." (Tr. at 81.)
Detective Ronald Lemon testified that he arrested Chinn at
his mother's house. (Tr. at 99.) He described the gun
used in the incident to Chinn's mother, who said that she
owned a gun fitting the description. (Tr. at 100-01.) After
Chinn's mother consented to a search of the home, she
took Detective Lemon to where the gun was stored in her
bedroom. (Tr. at 102-03.) The gun had one spent shell casing
and one live round inside. (Tr. at 105.) During an interview
after Chinn's arrest, he told Detective Lemon that the
shooting was an accident and that he had not intended to harm
James-Amir. (Tr. at 129.)
Erica Pattie testified as a forensic firearms expert. (Tr. at
158.) She testified that the gun in question, a Derringer
pistol, had to be fully cocked after loading and have the
safety off before it would discharge. (Tr. at 163-64.) On
cross-examination, she stated that it would be possible for
the weapon to be accidentally discharged. (Tr. at 167.)
Before jury deliberations, Chinn's attorney proposed a
jury instruction with the following definition of
"accident": "An accident is a mere physical
happening or event and not reasonably foreseen as a natural
result of an unlawful act." (Tr. at 142.) The trial
court overruled the request to include the instruction. (Tr.
The jury returned a guilty verdict on the felonious assault
and attempted murder charges, as well as the firearm and
drive-by shooting specifications for those offenses. (Tr. at
229-30.) The trial court separately convicted Chinn of the
repeat offender specification. (Tr. at 234.) After merging
the offenses, the trial court sentenced Chinn to a total of
25 years imprisonment. (Aug. 25, 2015 Jgmt. Entry.)
Id. at ¶ 2-8.
3} The sole assignment of error on appeal asserted
that the trial court erred when it failed to include
Chinn's requested jury instruction. Applying the test for
review of jury instructions set forth in State v.
Dodson, 10th Dist. No. 10AP-603, 2011-Ohio-1092, ¶
6, we held that the trial court did not abuse its discretion
when it refused to present Chinn's requested instruction
because it was not a correct statement of the law.
Chinn at ¶ 7-8. We also noted that the trial
court's decision not to include the instruction did not
hamper the defense that Chinn's attorney ...