Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court T.C. NO.:
MATHIAS H. HECK, JR., by HEATHER JANS, Atty. Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Appellate Division, Montgomery County Courts
Building, Attorney for Plaintiff-Appellee
CHARLES SLICER III, Atty. Attorney for Defendant-Appellant
1} Defendant-appellant Erica Thomason appeals her
conviction and sentence for one count of felonious assault
(deadly weapon), in violation of R.C. 2903.11(A)(2), a felony
of the second degree. Thomason filed a timely notice of
appeal with this Court on March 20, 2017.
2} The incident which forms the basis for the
instant appeal occurred at approximately 5:45 p.m. on May 19,
2016, at the Family Dollar Store located at 440 James H.
McGee Boulevard in Dayton, Ohio, when the victim, LaDonna
Cook, traveled to the store in order to purchase aluminum
foil. Upon arriving at the store, Cook observed Thomason
sitting in a car in the parking lot with her daughter,
Dashelle Moon, and two other females. The record
establishes that Cook and Thomason had a negative history
with each other dating back to November of 2015. Thomason had
threatened physical violence against Cook on at least three
3} Upon entering the store, Cook observed Thomason
enter the store after her, whereupon Thomason looked around
and then walked back outside to the parking lot. Cook
testified that after doing this twice, Thomason went outside
and stood in front of Cook's parked car. Cook testified
that while she was in the checkout line to purchase the
aluminum foil, she was also speaking with a friend on her
cellphone regarding Thomason's behavior. Exie Johnson,
the employee who was checking Cook out, overheard the
telephone conversation. After completing the transaction,
Johnson informed Cook that she could come and stand behind
the register in a secured area where she would be safe from
4} Cook declined Johnson's offer and instead
went to Aisle 21 in the store and called 911 because she
feared that Thomason was planning to attack her. While Cook
was speaking with the 911 dispatcher, Moon came into the
store, approached Cook, and stated that Thomason had given
her permission to allow Moon to "beat up Cook."
Cook testified that she told Moon to leave. After Moon left,
Cook testified that she grabbed a hammer from off the shelf
so that she could protect herself.
5} Shortly thereafter, Moon reentered the store and
approached Cook. As Moon approached Cook, Thomason walked
around from the other side of the aisle and approached Cook
from behind. While Moon recorded the incident with her
cellphone, Thomason grabbed Cook from behind and rammed her
into a wall. Thomason then forced Cook onto the ground and
began dragging her around by her hair. Cook testified that
she dropped the hammer during the attack, and Thomason was
able to gain control of it. Johnson testified that she
observed Thomason repeatedly hit Cook in the back with the
hammer while she was laying on the ground. The store manager
attempted to break up the fight, and ultimately Moon also
helped pull Thomason away from Cook. At trial, the State
introduced into evidence the partial recording of the assault
retrieved from Moon's cellphone.
6} Cook testified that once the attack ended,
Thomason and Moon ran out of the store laughing and joking
with each other. Thomason and Moon had left the scene by the
time that the police arrived. As part of their investigation,
the police photographed the injuries suffered by Cook during
the attack, including bruising and cuts to the right side of
her face, injuries to her arm, and bruising on her back.
7} On June 27, 2016, Thomason was indicted for one
count of felonious assault with a deadly weapon. At her
arraignment on July 7, 2016, Thomason pled not guilty to the
charge against her.
8} A jury trial was held which began on February 6,
2017, and ended on February 8, 2017. Thomason was found
guilty of felonious assault with a deadly weapon, and the
trial court ordered adult probation to prepare a presentence
investigation report (PSI). Thereafter on March 14, 2017, the
trial court sentenced Thomason to four years in prison.
9} It is from this judgment that Thomason now
10} Thomason's first assignment of error is as
11} "COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE
AS SHE DID NOT ADVISE HER CLIENT OF HER RIGHT TO TESTIFY IN
HER OWN DEFENSE. FURTHER, COUNSEL FOR DEFENDANT WAS
INEFFECTIVE FOR FAILURE TO MAKE PROPER OBJECTIONS."
12} In her first assignment, Thomason contends that
the she received ineffective assistance when her counsel
failed to advise her that she could testify in her own
defense. Thomason further argues that her counsel was
ineffective for failing to ask the trial court to instruct
the jury to disregard comments made by a State witness, Exie
Johnson. Two separate objections to specific portions of her
testimony had been sustained. Lastly, Thomason argues that
trial counsel was ineffective for failing to request a jury
instruction of self-defense.
13} "We review the alleged instances of
ineffective assistance of trial counsel under the two prong
analysis set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted
by the Supreme Court of Ohio in State v. Bradley
(1989), 42 Ohio St.3d 136, * * * Pursuant to those cases,
trial counsel is entitled to a strong presumption that his or
her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688 [104 S.Ct.
2052]. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of
reasonableness and that his errors were serious enough to
create a reasonable probability that, but for the errors, the
result of the trial would have been different. Id.
Hindsight is not permitted to distort the assessment of what
was reasonable in light of counsel's perspective at the
time, and a debatable decision concerning trial strategy
cannot form the basis of a finding of ineffective assistance
of counsel." (Internal citation omitted). State v.
Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493,
14} An appellant is not deprived of effective
assistance of counsel when counsel chooses, for strategic
reasons, not to pursue every possible trial tactic. State
v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988).
The test for a claim of ineffective assistance of counsel is
not whether counsel pursued every possible defense; the test
is whether the defense chosen was objectively reasonable.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). A reviewing court may not
second-guess decisions of counsel which can be considered
matters of trial strategy. State v. Smith, 17 Ohio
St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic and
tactical decisions may not form the basis of a claim for
ineffective assistance of counsel, even if, in hindsight, it
looks as if a better strategy had been available. State
v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
15} Initially, we note that the record indicates
that Thomason testified on her own behalf at trial.
Therefore, Thomason's argument that her trial counsel was
ineffective for failing to inform her that she could testify
at trial is without merit. Thomason is unable to establish
any prejudice even if her assertion is true since she was
able to relate her version of the facts.
16} The first sustained objection that Thomason
suggests establishes ineffective assistance by her trial
counsel occurred during the following exchange between
Johnson and the State:
The State: *** What was the first thing that kind of caught
your attention before the altercation started?
Johnson: Well, I was ringing up customers at the register and
I rung up, I believe her name is LaDonna. And she had
purchased aluminum foil, but she came in and she was just
kind of irate and talking on the phone and saying that some
people were outside and she knows that they're going to
come in and try to fight her.
Defense Counsel: Objection as to what the other witness may
have said, Your Honor.
The State: Your Honor, at this point it's not offered for
the truth of the matter [sic] it will explain her conduct.
The Court: Just approach, please. (At Sidebar)
The Court: Is your objection ...