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State v. Thomason

Court of Appeals of Ohio, Second District, Montgomery

March 30, 2018

STATE OF OHIO Plaintiff-Appellee
v.
ERICA THOMASON Defendant-Appellant

          Criminal Appeal from Common Pleas Court T.C. NO.: 16-CR-1621/1

          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

          OPINION

          DONOVAN, J.

         {¶ 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[1], 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 prior occasions.

         {¶ 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 Thomason.

         {¶ 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 appeals.

         {¶ 10} Thomason's first assignment of error is as follows:

         {¶ 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, ¶ 31.

         {¶ 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.

         SUSTAINED OBJECTIONS

         {¶ 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 ...

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