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State v. Chinn

Court of Appeals of Ohio, Tenth District

November 2, 2017

State of Ohio, Plaintiff-Appellee,
v.
Angelo R. Chinn, Defendant-Appellant.

         C.P.C. No. 15CR-3416

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Angelo Chinn, pro se.

         ON APPLICATION TO REOPEN

          HORTON, J.

         {¶ 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         {¶ 2} We incorporate the recitation of the facts giving rise to Chinn's indictment and his trial from the direct appeal:

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. at 150.)
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 ΒΆ 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 ...


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