[Cite as State v. Smith,
2024-Ohio-2919.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230224
TRIAL NO. B-2002057
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DEMETRI SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 2, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of Michele L. Berry, LLC, and Michele L. Berry, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Although defendant-appellant Demetri Smith asserted self-defense at
his bench trial, he was convicted of felonious assault with two accompanying gun
specifications and having a weapon while under a disability. In this appeal, under four
assignments of error, he primarily takes issue with the fact that he was not permitted
to present his full defense of self-defense during the state’s case-in-chief. He contends
that the trial court violated his right to a fair trial by excluding a portion of his
statement he made to police and that the court committed plain error by not applying
the Castle Doctrine presumption of self-defense when considering his Crim.R. 29
motion for an acquittal and the verdict. He also maintains that his counsel was
constitutionally ineffective for failing to raise certain arguments in support of the
admission of his full statement during the state’s case-in-chief and failing to request
the application of the Castle Doctrine presumption. Finally, he asserts that his
conviction is against the weight of the evidence given his testimony that he observed
the victim with a gun, “about to pull up.” However, because our review of the record
convinces us that Smith’s trial was free from prejudicial error, we affirm the trial
court’s judgment.
The Trial
{¶2} At trial, the evidence demonstrated that Smith had told police that he
had taken a “bootleg cab” in the middle of the night to a local hotel in Sharonville, but
at trial he testified that his friend, Corliss Steele, had driven him to the hotel. While
his friend entered the hotel lobby to get a room, Smith remained in the car, which was
parked under the overhang outside the hotel’s front entranceway sliding doors. The
driver’s side of the car was the closest to the hotel’s entrance. Soon, a black SUV drove
under the overhang, from the opposite direction of the car Smith was in, and initially
drove past Smith, but then slowly backed up and stopped. The SUV was located
between Smith’s car and the hotel entrance. Two people were in the SUV, including
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OHIO FIRST DISTRICT COURT OF APPEALS
the driver, later identified as Maurice Stubblefield, and the passenger (and victim),
later identified as Antonious Carter. The two men stared at Smith, and then Carter
nodded at him. Smith told police that he had interpreted this nod to mean “it was on.”
{¶3} The passenger of the SUV, Carter, exited from the vehicle while talking
to Stubblefield. Smith later told police that Carter had been “messing” with his
waistband as he exited from the car. After Carter exited, Smith leaned his car seat (the
front passenger seat) all the way back, so his head was near the rear passenger-side
window. Carter then walked around the front of the SUV and around the back of
Smith’s car, and eventually stopped near the rear passenger-side window. Smith
turned and fired three shots through the side window, striking Carter in the shoulder.
Carter fled across the parking lot, and Stubblefield drove after him. Smith got out of
the car and entered the hotel lobby. Thirty-six seconds later, Smith walked back to the
hotel entrance and stepped outside. Carter, who was then back in the SUV, fired five
shots at Smith through the open car window. At that point, Smith ran back inside the
hotel and hid in a third-floor bathroom until the police arrived.
{¶4} The hotel’s video-camera footage confirms the positions of the cars
under the hotel’s overhang, and shows Carter exiting from the SUV, adjusting his
waistband, and then walking around the front of the SUV and around the back of
Smith’s car. Photographs of both cars show heavily-tinted windows and three bullet
holes in the rear passenger-side window of Smith’s car.
{¶5} During the state’s case-in-chief, Detective Keith Issacs, who had
interviewed Smith the night of the incident, testified at trial. He said that Smith had
told him that after the SUV pulled alongside Smith’s car,
[t]he passenger got out of the vehicle, said something to the driver. The
driver said something back to him, the passenger, and then the
passenger … walked in front of the passenger’s vehicle to the rear of
Mr. Smith’s vehicle on the driver’s side. Mr. Smith told us that he
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OHIO FIRST DISTRICT COURT OF APPEALS
believed that [Carter] was going to pull something and that Mr. Smith
said he was ready. I don’t remember the exact verbiage, but carrying a
ten; and that Mr. Smith turned and fired three shots in the direction of
the passenger through the back window.
{¶6} Issacs then testified that Smith had said this incident occurred because
of issues “on the street.” Smith told Issacs that earlier in the evening, his girlfriend’s
house had been “shot up.” A neighbor observed the gunmen, called Smith to report
the incident, and described the facial features of the gunmen. Smith explained to
Issacs that he had recognized Carter, based on the neighbor’s description, as one of
the gunmen who had “shot up” his girlfriend’s house.
{¶7} On cross-examination, defense counsel confirmed with Issacs that
Smith had said, when explaining what had happened prior to Smith shooting Carter,
“[Carter]’s about to pull.” Defense counsel then asked Issacs what else Smith had said,
but the state objected, explaining that the remaining part of Smith’s statement to
police (that he had observed Carter’s hand on the butt of a gun) was hearsay. Defense
counsel did not dispute that the remaining portion of Smith’s statement was hearsay,
but instead argued that Smith’s whole statement should be admitted because the state
had “opened the door” by asking Detective Issacs “what [Smith] said about [Carter]
approaching his vehicle [and that Issacs] opened the door even further by stating the
passenger was about to pull.” The trial court sustained the state’s objection. Defense
counsel then asked Issacs what he had thought Smith meant when saying that Carter
was “about to pull.” Issacs responded that he thought Smith meant that “[Carter] was
going to pull a weapon.”
{¶8} The recorded interview between the police and Smith was admitted into
evidence, but many parts of the recording are inaudible. At one point during the
interview when the police were trying to ascertain how Smith knew Carter, Smith
explained that it was because of a description of Carter’s facial features. One of the
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OHIO FIRST DISTRICT COURT OF APPEALS
officers asked Smith if the neighbor had described what kind of car the gunmen had
driven, and Smith said that Carter was in a “different vehicle” when Smith encountered
him later in the evening.
{¶9} Prior to resting, the state offered the testimony of the police officer who
had interviewed Carter and Stubblefield at the hospital. The officer testified that both
Stubblefield and Carter appeared inebriated and could not answer his questions.
Additionally, he noted that Carter’s clothes were a distinct neon yellow.
{¶10} At the close of the state’s case, Smith moved for an acquittal, arguing
that he had demonstrated self-defense, and that the state had not rebutted or
disproved any element of self-defense. The trial court denied his motion.
{¶11} Smith testified at trial, asserting that he had shot Carter in self-defense.
He said that his friend drove him to the hotel and that his attention was drawn to the
black SUV when it had initially pulled past his car but then had backed up, so that the
cars were aligned. He testified that Stubblefield and Carter were both staring at him,
and that Carter was fidgeting with something, but he did not know what it was. He
explained that when he had realized Carter did not go into the hotel, he leaned his
passenger seat all the way back because he feared that Carter was going to start
shooting at him. Smith explained that he believed that Carter had been one of the
gunmen that had fired upon his girlfriend’s house. He said that the neighbor did not
tell him what type of car the gunmen had been driving and said nothing about their
clothing. He testified that after Carter stopped outside of the rear passenger-side
window, Smith turned around, saw Carter clutching a gun, “he was trying to pull it,”
and fired three shots at Carter. Smith testified that he was in fear for his life.
{¶12} After listening to the evidence and reviewing the exhibits, including the
recording of Smith’s police interview, the trial court determined that Smith had not
acted in self-defense, and found him guilty of felonious assault (and the other charged
offenses). The court found that the state’s witnesses were credible, and Smith was not,
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OHIO FIRST DISTRICT COURT OF APPEALS
explaining that there were too many inconsistencies between Smith’s trial testimony
and his interview with the police and the evidence presented by the state. Specifically,
the court did not believe that Smith knew Carter or had recognized him; did not believe
that Carter had been the aggressor; and did not believe that Carter had a gun on him
at the time Smith shot him. The trial court also pointed out that Smith had originally
told the police that he had taken a bootleg cab to the hotel, but at trial testified that a
friend had driven him.
{¶13} Smith now appeals.
Evidentiary Ruling
{¶14} In his first assignment of error, Smith contends that the court’s
exclusion of part of his statement to police was erroneous because it denied Smith his
right “to due process, to confront the state’s witnesses, and to present a complete
defense.” We are unpersuaded.
{¶15} A trial court’s ruling as to the admission or exclusion of evidence is
within its broad discretion and will not be disturbed absent an abuse of that discretion.
State v. Tomlin, 63 Ohio St.3d 724, 728,
590 N.E.2d 1253 (1992). An appellate court
will not reverse an evidentiary ruling absent a showing that an incorrect ruling affected
a party’s substantial rights. State v. Warth, 1st Dist. Hamilton No. C-220477, 2023-
Ohio-3641, ¶ 68, citing State v. McKelton,
148 Ohio St.3d 261,
2016-Ohio-5735,
70
N.E.3d 508, ¶ 181.
{¶16} Under this assignment, Smith takes issue with the fact that during
Detective Issacs’s direct testimony he had testified that “Smith told us that he believed
that [the victim] was going to pull something and that Mr. Smith was ready … and
fired three shots in the direction of [the victim]” but when defense counsel asked Issacs
on cross-examination what else Smith had said, the state objected. The remaining part
of Smith’s statement, which was that Smith had “observed the handle of a pistol on
[the victim,]” was excluded as hearsay.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Smith does not contest the conclusion that the remaining portion of his
statement is hearsay, but argues that the court should have admitted it because the
state “opened the door” by asking Detective Issacs what Smith had said about the
shooting and by allowing Issacs to testify that Smith had said the victim was about to
“pull something.” This court has previously considered when evidence should be
admitted under an “opened the door” theory, and determined evidence should be
admitted under that theory when necessary to cure a prior admission of improper
hearsay evidence. See State v. Griffin, 142 Ohio App.3d 65,
753 N.E.2d 967 (1st
Dist.2001). But Isaacs’s testimony that Smith had turned and fired three shots at
Carter was not improper hearsay evidence; it was admitted under Evid.R. 801(D)(2)
as an admission by a party opponent. Thus, because there was no need to cure any
prior improper admission of hearsay evidence, the trial court did not abuse its
discretion by rejecting Smith’s “opened the door” argument and excluding the
remaining part of his statement that he had observed Carter with a gun.
{¶18} This exclusion did not violate Smith’s substantial rights—Smith was
able to present his full defense of self-defense during his case when he testified that he
had observed Carter pulling up on the handle of a gun and he was in fear of his life.
Additionally, he was able to confront witnesses against him by questioning Detective
Issacs about what the detective had thought it meant when Smith had said that the
victim was “about to pull.” Issacs testified that he thought it meant that Carter was
“about to pull a weapon.”
{¶19} For the first time on appeal, Smith argues that Evid.R. 106 permitted
the admission of the remaining portion of his statement. But that argument has been
waived because it was not raised below. State v. Wintermeyer, 158 Ohio St.3d 513,
2019-Ohio-5156,
145 N.E.3d 278, ¶ 10, citing Goldfuss v. Davidson,
79 Ohio St.3d 116,
121,
679 N.E.2d 1099 (1997) (“A first principle of appellate jurisdiction is that a party
ordinarily may not present an argument on appeal that it failed to raise below.”). But
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OHIO FIRST DISTRICT COURT OF APPEALS
even if it had been raised, Evid.R. 106 does not support the conclusion that the trial
court erred by excluding the remaining part of Smith’s statement.
{¶20} Evid.R. 106, known as the rule of completeness, provides that “[w]hen
a writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other writing
or recorded statement which is otherwise admissible and which ought in fairness to
be considered contemporaneously with it.” (Emphasis added.) The plain language of
Evid.R. 106 limits the rule of completeness to those parts of a statement that are
“otherwise admissible.” State v. Singh, 12th Dist. Butler No. CA2021-12-158, 2022-
Ohio-3385, ¶ 32. Smith’s exculpatory statement that he had observed the handle of a
gun on the victim was hearsay—an out of court statement offered for its truth—and
was not “otherwise admissible.” Further, the overriding purpose of Evid.R. 106 is to
prevent one party from taking statements out of context and distorting them. State v.
Koss, 10th Dist. Franklin No. 13AP-970, 2014-Ohio-5042, ¶ 32, citing State v. Byrd,
9th Dist. Lorain No. 03CA008230,
2003-Ohio-7168, ¶ 26. Smith claims that the
exclusion of his whole statement distorted Detective Issacs’s testimony about Smith
stating that he saw Carter “about to pull” something, and therefore, the remaining part
of his statement needed to be admitted into evidence to correct this confusion. But
during the state’s case-in-chief, Detective Issacs was permitted to testify that he
thought that Smith’s statement that “Carter was about pull” meant that Carter was
about to pull a “weapon.” The record here does not indicate that the trier of fact was
confused by Issacs’s testimony or that an issue in the trial was clearly distorted by the
testimony admitted.
{¶21} Finally, Smith argues that the exclusion of the remaining part of his
statement violated the Supremacy Clause of Article IV of the United States
Constitution by placing evidentiary rules over constitutional protections. Having
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OHIO FIRST DISTRICT COURT OF APPEALS
determined that the trial court’s exclusion of the remaining part of Smith’s statement
did not violate any of Smith’s substantial rights, we reject this argument.
{¶22} Based on the foregoing, the first assignment of error is overruled.
No Plain Error
{¶23} In his second assignment of error, Smith maintains that the court
committed plain error by failing to apply the Castle Doctrine presumption (that Smith
had acted in self-defense) when considering Smith’s Crim.R. 29 motion for an
acquittal and, again, at the close of trial when determining Smith’s guilt.
{¶24} To establish plain error, “a defendant must show that (1) there was an
error or deviation from a legal rule, (2) the error was plain and obvious, and (3) the
error affected the outcome of the trial.” State v. Mohamed, 151 Ohio St.3d 320, 2017-
Ohio-7468,
88 N.E.3d 935, ¶ 26, citing State v. Barnes,
94 Ohio St.3d 21, 2002-Ohio-
68 27,
759 N.E.2d 1240.
{¶25} In State v. Robertson, 1st Dist. Hamilton No. C-220047, 2023-Ohio-
2602, ¶ 18, we stated:
The “Castle Doctrine” creates a presumption that an individual acted in
self-defense. See State v. Jones, 2022-Ohio-3162,
195 N.E.3d 561, ¶ 18
(2d Dist.). Part of the doctrine is codified in R.C. 2901.05, and creates
a rebuttable presumption that a person using deadly force has acted in
self-defense “if the person against whom the defensive force is used is
in the process of unlawfully and without privilege to do so entering, or
has unlawfully and without privilege to do so entered, the residence or
vehicle occupied by the person using the defensive force.” R.C.
2901.05(B)(2). “When the presumption does exist, the prosecution may
rebut it by a preponderance of the evidence and then prove beyond a
reasonable doubt that the defendant did not act in self-defense.”
(Emphasis added.) Jones at ¶ 18, citing R.C. 2901.05(B)(4); see R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2901.05(B)(4) (“The [Castle Doctrine] presumption … is a rebuttable
presumption and may be rebutted by a preponderance of the evidence,
provided that the prosecution’s burden of proof remains beyond a
reasonable doubt.”).
After reviewing the record, we hold that the court did not commit plain error in failing
to apply the Castle Doctrine presumption. First, it is not obvious that the presumption
even applies here, and it seems not to. While there is testimony and video footage
showing Carter walking around the back of Smith’s car, there is no evidence that Carter
attempted to or entered Smith’s car, let alone touched it. Further, the heavily-tinted
windows were rolled up so Carter could not even reach in through the window. See
State v. Jones 2022-Ohio-3162,
195 N.E.3d 561 (2d Dist.) (holding that the Castle
Doctrine instruction should have been given because a jury could have found that the
victim had unlawfully entered the defendant’s vehicle by leaning in and reaching for
the defendant).
{¶26} Smith argues that his testimony that he had observed Carter pulling up
on the handle of a gun constitutes an attempted unlawful entry into Smith’s vehicle,
and cites to State v. Cuthbertson, 1st Dist. Hamilton No. C-750362, 1976 Ohio App.
LEXIS 8575 (June 1, 1976), in support. But Cuthbertson does not address self-defense
or the Castle Doctrine. Instead, in Cuthbertson, this court held that a slight
penetration of the space within a building was sufficient to constitute entry in a
breaking-and-entering case.
{¶27} Because Smith cannot point to any caselaw, and we can find none, that
supports his proposition that seeing a person outside one’s vehicle touching the handle
of a gun constitutes an attempted entry into one’s motor vehicle, he has not shown that
the Castle Doctrine presumption was plainly and obviously applicable in this case.
Therefore, we cannot say that the trial court committed plain error by failing to apply
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OHIO FIRST DISTRICT COURT OF APPEALS
that presumption in considering Smith’s Crim.R. 29 motion for an acquittal or in
considering Smith’s guilt. The second assignment of error is overruled.
No Demonstration of Ineffective Assistance
{¶28} In his third assignment of error, Smith argues that his trial counsel was
constitutionally ineffective for failing to argue that the trial court’s exclusion of part of
his statement to police violated his constitutional rights and that the remaining parts
of his statement were admissible under Evid.R. 106. He also contends that his counsel
was ineffective for not requesting that the court apply the Castle Doctrine presumption
when considering Smith’s motion for an acquittal and the verdict.
{¶29} To prevail on a claim of ineffective assistance of counsel, the defendant
must demonstrate (1) that counsel’s performance fell below an objective standard of
reasonableness, and (2) that counsel’s deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 694,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984);
State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373 (1989). To establish prejudice,
the defendant must demonstrate that but for counsel’s deficient performance, there is
a reasonable probability that the result of the trial would have been different. See
Strickland at 687;
Bradley at 141-142. The failure to make an adequate showing on
either prong is fatal to an ineffective-assistance-of-counsel claim. See
Strickland at
697; State v. Daniels,
2018-Ohio-1701,
111 N.E.3d 708, ¶ 24 (1st Dist.).
{¶30} With respect to Smith’s argument that his counsel was ineffective for
failing to argue that the exclusion of part of his statement to police violated his
constitutional rights, Smith cannot demonstrate prejudice. While Smith was
prevented from presenting his full defense of self-defense during the state’s case-in-
chief, he was permitted to do so during the defense’s case, which the trial court
considered in determining Smith’s guilt. He was also able to confront Detective Issacs
and ask him what he had thought it meant when Smith had said that Carter “was about
to pull.” And Smith has failed to show prejudice from his counsel’s failure to argue
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OHIO FIRST DISTRICT COURT OF APPEALS
that Evid.R. 106 supported the admission of the remaining portion of his statement
where that argument would have failed, as we previously discussed. Finally, we cannot
say that defense counsel’s failure to request the application of the Castle Doctrine
presumption constituted ineffective assistance where there was no evidence that the
victim, although he walked near Smith’s car, attempted to or unlawfully entered it.
Ultimately, the trial court considered whether Smith had acted in self-defense, and
because the court found Smith’s testimony—that he recognized the victim and saw the
victim with a gun—not credible, it found that Smith had not acted in self-defense as
he, not Carter, was the initial aggressor.
{¶31} The third assignment of error is overruled.
Manifest Weight
{¶32} In his fourth and final assignment, Smith contests the weight of the
evidence underlying his convictions. Because Smith only raises arguments pertaining
to his felonious-assault conviction, we consider whether his conviction for felonious
assault (and not his conviction for having a weapon while under a disability) was
against the weight of the evidence.
{¶33} When considering a manifest-weight-of-the-evidence challenge, we must
consider whether the state carried its burden of persuasion before the trial court. Unlike
the burden of production, which concerns a party’s duty to introduce enough evidence
on an issue, the burden of persuasion represents a party’s duty to convince the factfinder
to view the facts in his or her favor. Therefore, for us to conclude that the factfinder’s
adjudication of conflicting evidence ran counter to the manifest weight of the evidence—
which we reserve for only the most exceptional circumstances—we must conclude that
the trier of fact disregarded or overlooked compelling evidence that weighed against
conviction. See State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.
{¶34} Under this assignment, Smith takes issue with the trial court’s finding
that he was the initial aggressor. In making that determination, the trial court found
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OHIO FIRST DISTRICT COURT OF APPEALS
that Smith’s testimony that he had recognized Carter and saw him with a gun when he
was walking around the car was not credible. In considering this credibility
determination, we are guided by the presumption that “a [trier of fact] is best able to
view the witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” State
v. Jones, 10th Dist. Franklin No. 22AP-209, 2023-Ohio-2855, ¶ 16. Here, the evidence
at trial supports the court’s credibility determination.
{¶35} First, Smith said that he recognized Carter as one of the gunmen who
had shot at his girlfriend’s house. However, it seems unlikely that Smith would have
immediately recognized someone he has never seen before based on a cursory
observation of Carter through heavily-tinted windows and the neighbor’s description
of Carter’s facial features. Further, Smith never explained how Carter’s facial features
matched the description he was given by the neighbor. And, even though Smith
testified that the neighbor had not described what type of car the gunmen had been
driving, he had earlier told police that Carter had arrived in a “different vehicle.”
{¶36} Next, Smith testified that he saw Carter with his hand on a gun and
“about to pull.” Although video footage from the hotel’s security camera confirms that
Carter walked around Smith’s car, it does not show that Carter had a gun. Further,
when Smith shot Carter, he did not respond with gunfire. Instead, Carter ran away
and got back into the black SUV. It was only then that he fired shots at Smith.
{¶37} Based on the foregoing, it is difficult for us to say that the trial court
overlooked compelling evidence in finding that Smith was the initial aggressor. Given
that the trier of fact is in the best position to judge credibility, we cannot say that the
trial court lost its way and created a manifest miscarriage of justice by finding that
Smith’s self-defense claim was not viable and that Smith, rather than Carter, had been
the aggressor. The fourth assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶38} Having overruled all four assignments of error, we affirm the trial
court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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