[Cite as State v. Baker,
2024-Ohio-759.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, : Case No. 23CA9
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
JENNIFER M. BAKER, :
Defendant-Appellant. : RELEASED 2/27/2024
______________________________________________________________________
APPEARANCES:
Kate L. Bowling, Bowling Law Office, L.L.C., Dayton, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Jennifer M. Baker appeals her conviction following a jury trial of one count
of felonious assault. In addition, she forfeited the Remington 870 12-gauge shotgun she
used to commit the offense. The charges stem from an incident in which Baker believed
her adult daughter’s boyfriend, who was not welcome on her property, was driving past
her house at 2 a.m. Baker took her shotgun and fired two shots at the vehicle as it travelled
along a public road. Baker then called law enforcement and informed them that she had
fired shots at her daughter’s boyfriend because he had threatened her. However, the
driver was not her daughter’s boyfriend. Instead Baker had fired at a man who had not
threatened Baker in any respect, but was giving a relative a ride home. The shot shattered
the vehicle’s passenger-side window and blew glass into the vehicle, but did not injure
the driver.
Highland App. No. 23CA9 2
{¶2} Baker contends the trial court erred when it prohibited her from presenting
evidence that she was acting in self-defense when she fired her shotgun at a passing
vehicle. She argues that she should have been able to introduce evidence about the
history between her and her daughter’s boyfriend, who she mistakenly believed was
driving the vehicle that drove by her house.
{¶3} Baker also contends that she received ineffective assistance of counsel
because her attorney failed to proffer the evidence about the history between herself and
her daughter’s boyfriend. She argues that because the evidence was related to her
burden to produce evidence she acted in self-defense, she was prejudiced because she
was unable to assert the defense of self-defense. Baker also contends her trial counsel
was ineffective when he failed to make a Crim.R. 29 motion for an acquittal at the close
of the state’s case and again at the close of evidence. She argues that the state failed to
produce sufficient evidence to support all the elements of felonious assault. Specifically,
she contends that an element of the state’s case was that she “knowingly cause or
attempt to cause serious physical harm” and because she only fired the equivalent of “a
spray of ‘BBs’ on the exterior of the vehicle” at a distance of approximately 30 feet, there
was no evidence that she intended to cause physical harm to the driver.
{¶4} We find that Baker produced insufficient evidence that she was acting in
self-defense when she fired shots at a pickup truck on a public roadway as it was traveling
past her house. Therefore, evidence of her adult daughter’s boyfriend Terry Shanks’
alleged prior acts of violence were not relevant and were properly excluded by the trial
court. Because the evidence was properly excluded, Baker’s attorney’s failure to proffer
it did not affect the outcome of the proceeding and was not prejudicial. Additionally, we
Highland App. No. 23CA9 3
find that the state produced sufficient evidence that Baker committed felonious assault,
therefore her counsel’s failure to move for a Crim.R. 29 acquittal would have been futile
and was not prejudicial.
{¶5} We overrule Baker’s assignments of error and affirm the trial court’s
judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶6} The Highland County grand jury indicted Baker on one count of felonious
assault in violation of R.C. 2903.11(A)(2), a second-degree felony, and one count of
aggravated assault in violation of R.C. 2903.12(A)(2), a fourth-degree felony. She was
also subject to a forfeiture specification for the firearm used in the offenses. Baker pleaded
not guilty. Prior to trial, the state filed a motion in limine to exclude any evidence regarding
self-defense as it relates to Terry Shanks, arguing that it was not relevant under Evid. R.
401 because (1) Baker fired at a vehicle travelling on a public road and (2) the vehicle
fired at was not being driven by Terry Shanks, the person of whom Baker alleged she
was fearful. The state also argued that any mistaken identity Baker alleged she had
concerning the driver does not have any relevance to her self-defense claim. Baker
responded by providing a brief history of her interactions with Terry Shanks and arguing
that she had an honest belief that she was in imminent danger of death or grievous bodily
injury and the doctrine of transferred intent in self-defense applied because she had
mistaken the identity of the driver for that of Shanks. The trial court found that the
evidence of the history between Baker and Shanks was not relevant to any issue in the
case because Baker did not have reasonable grounds to believe the person in the truck
intended to cause her death or great bodily harm:
Highland App. No. 23CA9 4
Driving by a residence and revving the engine of the vehicle on a public
roadway does not constitute reasonable grounds to fear death or great
bodily harm even if the person had been Terry Shanks. The fear must be
based upon the facts and circumstances at the time of the incident,
otherwise, people would be permitted to shoot anyone that they claimed
had threatened them in the past if they passed them on the street.
The trial court stated that Baker would not be permitted to introduce evidence of self-
defense as it relates to her past victimization by Shanks at the trial but she could proffer
this evidence to preserve the issue for appeal.
{¶7} At trial, Highland County Dispatcher Dale Swingley testified that he
processes telephone calls from the public. At 2 a.m. on October 28, 2022, Jennifer Baker
called in. The recording of the call was played for the jury. In the recording, Baker states,
“Terry Shanks just drived [sic] past here and um threaten [sic] me. So, somebody better
get down here and help.” After Dispatcher Swingley asked for her name and address, he
asked for a description of the vehicle. Baker replied, “He was in the pickup truck. I don’t
know what it is, it’s dark, I don’t know. … He drove up here revving up his motor, I
walked out with a gun and fired a gun at him while he was driving down the road.” The
telephone recording also captured additional remarks Baker made to someone other than
Dispatcher Swingley, which were “Bye. AH. Mother Fucker, I’ve had enough. Bitch, I’ve
had enough. You dick, (?) [sic] get the fuck out of my life.” Dispatcher Swingley testified
that in response to Baker’s call, he dispatched three deputies to Baker’s residence.
{¶8} Wade Page testified that in the early morning hours of October 28, 2022,
he was driving his 1984 Chevy pickup truck with his father-in-law in the front passenger
seat. He dropped his father-in-law off at his in-laws’ house and then, rather than drive
directly home, he took a different route to drive past a place he thought might have a tree
cutting job “and I was driving down the road and my windows got blowed out [sic] of my
Highland App. No. 23CA9 5
truck.” Page testified that he knew Baker and where she lived. He testified that her house
was close to the place he had performed tree cutting services for in the past. He testified
that as he drove past Baker’s house, he had not stopped his truck, had not revved the
engine, and had not yelled anything at her house. Page testified, “… *I was driving by. I
wasn’t aggravating, I wasn’t even stopping to see her. I was just driving normal.” Page
testified that he could remember being shot at once and “glass blew over my head and
face ….” The side window glass blew all over his head and the entire window was blown
out. Page identified photographs with gunshot damage to the exterior side of his truck, all
along the side of the truck, and across the tailgate. Page testified that in response to
getting shot at by Baker, he became angry, went home, got his gun, went back to Baker’s,
fired several shots in the air, and headed back home again. A sheriff’s deputy followed
Page to his house and arrested him.
{¶9} Sheriff Deputy Ryan Ross testified that he was dispatched out to Baker’s
house. Deputy Ross arrived to find shattered glass on the ground and a shotgun shell.
Deputy Ross took photographs of the scene that showed the shattered glass and shotgun
shell casing. Deputy Ross testified that he took a statement from Baker, who told him,
“she said, Terry Shanks has droven by [sic] and she went and got her shotgun and shot
at him.” At some point later in the morning, Deputy Ross informed Baker that she had
shot at Wade Page, not Terry Shanks. Deputy Ross testified that he and two other
deputies had been out at Baker’s house on a wellness call at about 10 p.m. the day before
(four hours prior to the 2 a.m. incident) and visited a camper parked about 50 yards from
Baker’s house. They were looking for Terry Shanks but Baker’s daughter, Stephanie
Highland App. No. 23CA9 6
Stewart, was inside the camper, denied that Shanks was inside, and did not grant them
access inside the camper.
{¶10} Deputy Dylan Quenneville testified that he went out to Baker’s house at 2
a.m. the morning of the incident. While on his way, he came in contact with Wade Page’s
pickup and pursued it back to Page’s house where he confronted Page. Page’s truck had
its passenger window busted out and what appeared to be BB marks on the vehicle from
its front driver headlights, all the way along the side, and ending along the back tailgate.
There was shattered glass in the passenger seat. Deputy Quenneville testified that he is
familiar with firearms and buck shot and bird shot ammunition. Both are fired from a gun
and they are both used to kill. Deputy Quenneville also testified that he had been out to
Baker’s house about four hours earlier for a wellness check on Baker’s daughter,
Stephanie Stewart. However, Stewart, who had a camper on Baker’s property, would not
permit law enforcement into the camper.
{¶11} Jennifer Baker testified in her defense. Baker testified that she is a 60-year-
old widow with a 250-acre farm that she operates alone since her husband’s death in
2020. She has not installed any security lighting on her property. Baker’s daughter,
Stephanie Stewart, lives in a camper on Baker’s property. Terry Shanks is Stephanie’s
boyfriend and has been since approximately 2019. However, Baker testified that Terry
Shanks is not welcome in Baker’s home. Baker testified that she had been employed as
the finance director for Highland County Community Action, but was fired due to this
incident.
{¶12} Baker testified that she joined the officers who came to do a wellness check
on her daughter. She walked them down to the camper, and the deputies noted that there
Highland App. No. 23CA9 7
was a moped sitting at the end of the camper. Baker testified that the entire wellness
check took only a few minutes. Stephanie opened the camper door, told them that Terry
Shanks was not there, and that she would not let them into the camper. Baker and the
deputies continued to stand outside the camper for about five minutes listening to see if
they could hear conversation coming from the camper. After the deputies left, Baker
testified that she went back down to the camper and the moped was gone.
{¶13} Baker testified that after that, she went to bed and woke up at 2 a.m. to the
sound of a vehicle out in the front of the house revving up its engine. She was able to
hear it because she sleeps with her front screen door open. She owns an 870 Remington
shotgun and had “seven and a half shot” loaded in the shotgun. Baker identified the empty
box of shotgun shells she loaded into the shotgun. Baker testified that the revving engine
was of interest to her because, “I figured he [Shanks] was back to either cause more harm
to my daughter or whatever he does.” She heard the vehicle travel up the road and then
turn around and come back. “And whenever I heard him coming back I stepped out the
door. And I shot at the vehicle.”
{¶14} Baker testified that she fired at the vehicle because, “I believed it was Terry
Shanks and he was either back to cause more harm to my daughter … or harm to
property or to me ….” Baker testified that on the way back past her house, the vehicle
had been travelling such that the passenger side was facing her side of the road and she
was approximately 25 to 35 feet away from it and just off her front porch. Baker testified
that her intention in firing at the vehicle was, “I just wanted him to stop, I wanted him to
go away.” Baker testified the truck continued to drive down the road after she shot at it.
She testified that she “stood there for a little bit, well I’ll [sic] called the sheriff to let them
Highland App. No. 23CA9 8
know what had happened. Because I’m honest like that.” When she went back out to the
front porch, she set the shotgun down. She testified that it was no longer loaded because
“it had two shots in it and that was it.”
{¶15} After she placed the call to the sheriff, Baker testified that she got a drink
and went back out on the front porch, “Because the truck whenever it stopped it said you
better bring more bullets is what he told me.” After a short time, the truck came back up
the road and fired two shots towards her house. Baker testified that a photograph of her
truck showed a broken taillight, which she believed was caused by a shot from the driver
when he returned after being shot by her. After that, law enforcement arrived and, on their
way, they located the pickup truck driver. Initially, law enforcement told Baker that they
had caught Terry Shanks, but later they came back and told her that it was not Terry
Shanks driving the truck, it was Wade Page.
{¶16} Baker testified that she knew Wade Page and the last time she had seen
him was probably in the summer. She testified that she believed the driver was Terry
Shanks because the driver had stopped out in front of the house and revved his engine,
which is what Shanks had done in the past. However, she admitted that it was dark and
she could not see the driver. She also was not aware whether her daughter Stephanie
was still on her property when she fired at the pickup truck. Baker testified that she
understood she could have injured somebody firing a shotgun round at the vehicle.
{¶17} On cross examination Baker was asked who she was calling a “Fucking
Bitch” on the recorded call to the sheriff’s office, and who she was “screaming at and
telling to get out of your life?” Baker testified that it was her daughter, but her daughter
was not there and Baker was just “screaming in the air.” Baker also admitted that Terry
Highland App. No. 23CA9 9
was driving a moped earlier. Baker was asked, “Do you think that it’s responsible gun
ownership to shoot in the dark at a passing vehicle?” and Baker responded, “No.” Baker
also admitted that she fired two shots at the pickup truck. Baker testified that, after she
shot at the pickup truck, she heard the driver say “you better bring more bullets,” but she
could not tell if that was Terry Shanks voice because, “I don’t know, I’m not familiar with
Terry Shanks[’] voice.” Baker admitted that it could have easily been anyone in the truck.
However, she testified that she believed it was Terry Shanks because, although she could
not identify the make and model of the truck, she testified that it appeared to be an old
pickup truck based on the sound of it. Baker testified that the sound was consistent with
Terry Shanks’ operation of motor vehicles in the past.
{¶18} The jury found Baker guilty of felonious assault, the second-degree felony
count, and not guilty of aggravated felonious assault, the fourth-degree felony count.1 It
found Baker’s shotgun subject to forfeiture. The trial court sentenced Baker to a minimum
prison term of two years and a maximum term of three years.
II. ASSIGNMENTS OF ERROR
{¶19} Baker presents the following assignments of error:
I. The trial court erred in prohibiting defendant from admitting evidence
to meet her burden of production for a self-defense instruction.
II. Defendant was denied effective assistance of counsel.
III. LAW AND ANALYSIS
1 The state moved to dismiss the aggravated felonious assault count and it appears the state’s motion was
made after jury deliberations commenced. The trial court granted the dismissal of that count, but also
accepted the jury’s not guilty finding on that count.
Highland App. No. 23CA9 10
A. Trial Court’s Exclusion of Evidence
{¶20} Baker contends that the trial court erred when it did not permit her to
introduce evidence of the history between herself and her daughter’s boyfriend, Terry
Shanks. She contends that when she fired shots at the vehicle, she mistakenly believed
Shanks was the driver and had come to harm her or her daughter. She argues that
because an element of self-defense is a bona fide belief of imminent risk of death or great
bodily harm, testimony regarding the history between Shanks and Baker was relevant
and instructive to the reasonableness of her fear at the time she fired at the passing
vehicle. The state responds that the trial court did not abuse its discretion in excluding
evidence of Shanks’ and Baker’s past dealings because there is no evidence that tends
to support that Baker was acting in self-defense when she shot at a vehicle driving on a
public roadway away from her house.
1. Standard of Review
{¶21} A trial court has broad discretion in the admission of evidence, and unless
it has clearly abused its discretion and the defendant has been materially prejudiced
thereby, an appellate court should not disturb the decision of the trial court. State v.
Barnes, 94 Ohio St.3d 21, 23,
2002-Ohio-68,
759 N.E.2d 1240. Therefore, we confine our
inquiry to determining whether the trial court acted unreasonably, arbitrarily, or
unconscionably in excluding evidence. Id.
2. Evidence of Baker’s History with Shanks
Highland App. No. 23CA9 11
{¶22} Baker contends that evidence about her history with Shanks was necessary
to allow to her assert a claim of self-defense and the trial court erred when it excluded all
evidence of it.
{¶23} To merit consideration of the affirmative defense of self-defense, Baker first
had “the burden of producing legally sufficient evidence of self-defense to trigger the
state's duty to overcome that evidence.” State v. Messenger, 171 Ohio St.3d 227, 2022-
Ohio-4562,
216 N.E.3d 653, ¶ 19. “Similarly to the standard for judging the sufficiency of
the state's evidence, if the defendant's evidence and any reasonable inferences about
that evidence would allow a rational trier of fact to find all the elements of a self-defense
claim when viewed in the light most favorable to the defendant, then the defendant has
satisfied the burden.” Id. at ¶ 25.
A self-defense claim includes the following elements:
(1) that the defendant was not at fault in creating the situation
giving rise to the affray; (2) that the defendant had a bona fide
belief that he [or she] was in imminent danger of death or great
bodily harm and that his [or her] only means of escape from
such danger was in the use of such force; and (3) that the
defendant did not violate any duty to retreat or avoid the
danger. (Brackets sic.)
Messenger at ¶ 14, quoting State v. Barnes,
94 Ohio St.3d 21, 24,
759 N.E.2d 1240
(2002). While the burden is not onerous, and may be demonstrated with the state's
evidence, a claimant must satisfy this burden and present evidence “that tends to support”
a self-defense claim. State v. Bulger, 6th Dist. Sandusky No. S-23-001,
2023-Ohio-4004,
¶ 14. There is “no due-process right to a presumption of an affirmative defense such as
self-defense” and “there is no explicit presumption of self-defense in R.C. 2901.05(B)(1).”
Messenger at ¶ 19-20.
Highland App. No. 23CA9 12
{¶24} If a defendant produces legally sufficient evidence of self-defense, then the
state has a duty to overcome that evidence. R.C. 2901.05(B)(1) provides:
A person is allowed to act in self-defense, defense of another, or defense
of that person's residence. If, at the trial of a person who is accused of an
offense that involved the person's use of force against another, there is
evidence presented that tends to support that the accused person used the
force in self-defense, defense of another, or defense of that person's
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another,
or defense of that person's residence, as the case may be.
{¶25} Thus, if R.C. 2901.05(B)(1) is triggered then the state is required to disprove
self-defense by proving beyond a reasonable doubt that a defendant (1) was at fault in
creating the situation giving rise to the affray, or (2) did not have a bona fide belief that he
or she was in imminent danger of death or great bodily harm for which the use of deadly
force was the only means of escape, or (3) did violate a duty to retreat or avoid the danger.
State v. McCallum, 10th Dist. Franklin No. 19AP-796, 2021-Ohio-2938, ¶ 37.
{¶26} Here, Baker failed to produce legally sufficient evidence of self-defense.
The second element of self-defense – that Baker believed she or her daughter were in
imminent danger of death or great bodily harm – involves both objective and subjective
considerations. State v. Mitchell, 2023-Ohio-2604,
222 N.E.3d 156, ¶ 24-25 (1st Dist.).
Baker’s belief that she was in immediate danger of death or great bodily harm must be
objectively reasonable, and she must have an honest belief that she faced such danger.
Id. Baker testified that she heard a truck’s engine revving, went outside, and fired her
shotgun at a vehicle passing by on a public roadway. Baker did not see the driver and
she was not threatened physically or verbally by the driver prior to her firing at it. The
driver was not on her property or driving in her direction as if to run her over, but rather
Highland App. No. 23CA9 13
was driving past and away from her property. Thus, Baker’s belief was not objectively
reasonable.
{¶27} Additionally Baker failed to meet the subjective standard. Baker testified that
she believed the driver was Terry Shanks, but she did not testify that she believed she or
her daughter were in imminent danger of death or great bodily harm from Shanks. Rather,
she testified that she did not know why Terry Shanks was there. Baker initially testified
that she believed Shanks was there for one of two reasons: “he was back to either cause
more harm to my daughter or whatever he does.” Later Baker testified she did not know
if Shanks was back to cause “harm” to her or her daughter or to cause “harm” to her
property. Thus, Baker failed to present any evidence that she had an honest subjective
belief that she or her daughter were in imminent danger of death or great bodily harm. In
sum, Baker was unsure why Shanks was there. Baker also failed to establish that she
fired at the pickup as it drove by as her only option to escape harm. To the contrary, she
testified she shot at the pickup truck to get him to stop revving his engine and leave, “I
just wanted him to stop, I wanted him to go away.”
{¶28} The “mistake of fact” she claims occurred does not excuse her behavior
because even if Shanks had been the driver, she was not justified in shooting at the
vehicle. In other words, Baker would be guilty of felonious assault even if the situation
were as she believed.
Ignorance or mistake of fact is a defense if it negates a mental state required
to establish an element of a crime, except that if the defendant would be
guilty of a crime under the facts as he believed them, then he may be
convicted of that offense. … LaFave, Criminal Law (2d Ed.1986) 405,
Section 5.1. See, generally, 25 Ohio Jurisprudence 3d (1981) 167, Criminal
Law, Section 62.
Highland App. No. 23CA9 14
State v. Pecora, 87 Ohio App.3d 687, 690,
622 N.E.2d 1142, 1144 (9th Dist.1993). Here
Baker would be guilty of felonious assault even if the driver had been Terry Shanks.
{¶29} Baker failed to produce legally sufficient evidence that she was acting in
self-defense. Because Baker was not entitled to assert the affirmative defense of self-
defense and because the victim here was not Terry Shanks, evidence of Baker’s and
Shanks’ history was irrelevant. See State v. Fisk, 2d Dist. Montgomery No. 28798, 2021-
Ohio-1973, ¶ 30-34, rev’d on other grounds, 171 Ohio St.3d 479,
2022-Ohio-4435,
218
N.E.3d 852 (Evid.R. 404(A)(2) permits a defendant asserting self-defense to testify about
specific instances of the victim’s prior violent or aggressive conduct which was known to
defendant to show defendant’s state of mind. However, where the evidence at trial
negated defendant’s theory of self-defense, the issue of defendant’s state of mind was
irrelevant and the trial court’s exclusion of evidence of the victim’s past aggressive
conduct was harmless error).
{¶30} The trial court did not abuse its discretion when it excluded evidence of the
past conduct of Terry Shanks. Baker was not acting in self-defense thus her state of mind
was irrelevant. Moreover, the victim here was Wade Page, not Terry Shanks. We overrule
Baker’s first assignment or error.
B. Ineffective Assistance of Counsel
{¶31} Baker contends her trial counsel was ineffective for failing to proffer
evidence about her past incidents with Shanks because it would provide context and
support a self-defense claim. She argues that, although her trial counsel requested to
proffer this evidence at the close of defense’s case, the trial court denied it but stated that
Highland App. No. 23CA9 15
it could be made following jury deliberations. However, her attorney did not proffer the
evidence following jury deliberations.
{¶32} The Sixth Amendment to the United States Constitution, and Article I,
Section 10 of the Ohio Constitution, provide that defendants in all criminal proceedings
shall have the assistance of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal defendant is entitled to the
“reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668,
104
S.Ct. 2052,
80 L.Ed.2d 674 (1984); accord Hinton v. Alabama,
571 U.S. 263, 272,
134
S.Ct. 1081,
188 L.Ed.2d 1 (2014) (Sixth Amendment right to counsel means “that
defendants are entitled to be represented by an attorney who meets at least a minimal
standard of competence”). To establish constitutionally ineffective assistance of counsel,
a defendant must show that (1) his counsel's performance was deficient, and (2) the
deficient performance prejudiced the defense and deprived the defendant of a fair
trial. E.g., Strickland,
466 U.S. at 687; State v. Myers,
154 Ohio St.3d 405, 2018-Ohio-
1903,
114 N.E.3d 1138, ¶ 183; State v. Powell,
132 Ohio St.3d 233,
2012-Ohio-2577,
971
N.E.2d 865, ¶ 85. To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that “but for counsel's errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
the outcome.” Strickland,
466 U.S. at 694.
1. Failure to Proffer Evidence of Baker’s and Shanks’ History
{¶33} Here, as the state points out, the outcome of the trial would not have differed
had Baker’s attorney proffered the evidence at the close of the jury’s deliberations
because the evidence would not have been before the jury. Thus, her counsel’s failure to
Highland App. No. 23CA9 16
do so did not affect the outcome of the proceeding. Moreover, as we discussed in
evaluating her first assignment of error, even if Baker’s attorney had proffered evidence
of Baker and Shank’s allegedly violent history, the trial court properly excluded that
evidence. Therefore the evidence was properly excluded and there is no reasonable
probability that the proffered evidence would have changed the outcome of the
proceedings. Baker has failed to establish ineffective assistance of counsel on this basis.2
2. Failure to Make a Crim.R. 29 Motion for Acquittal
{¶34} Baker also contends her trial counsel was deficient for failing to make a
Crim.R. 29 motion for acquittal. She argues that there was no proof that she knowingly
caused or attempted to cause serious physical harm. She argues she only shot “birdshot”
at a distance of 30 feet, which was the same ammunition she used to shoot and kill game
around the farm. Furthermore, she argues that there was no evidence any of the
ammunition that she shot landed inside the passenger compartment of the vehicle.
{¶35} The state argues that Baker misstates the law, the state is not required to
prove that the victim suffered serious physical harm. The state is required to prove that
Baker attempted to cause physical harm with a deadly weapon. A shot gun is a deadly
weapon and Baker fired at least two shots of ammunition from the shotgun at the vehicle.
The state argues this is strong circumstantial evidence that Baker was attempting to
cause physical harm with a deadly weapon. The state argues that Baker’s attorney could
easily predict that such a motion would be overruled and therefore was not required to
make it.
2 The record includes a document identified as “Defendant’s Exhibit C – Proffer of Testimony” and contains
a chronological history of Baker and Shanks’ contentious history. However, there is no reference to this
document in the trial transcript, therefore we are unable to determine if this document was considered by
the trial court.
Highland App. No. 23CA9 17
{¶36} “Counsel's failure to make a Crim.R. 29 motion for acquittal is not ineffective
assistance of counsel where such a motion would have been fruitless.” State v. Scott, 6th
Dist. Sandusky No. S-02-026, 2003-Ohio-2797, ¶ 20. “While it is customary for defense
counsel to make a motion for acquittal as a matter of course to test the sufficiency of the
state's evidence, the failure to follow that course of action did not mean the performance
of appellant's trial counsel fell below a reasonable standard of representation.” Fairview
Park v. Peah, 8th Dist. Cuyahoga No. 110128,
2021-Ohio-2685, ¶ 36, quoting State v.
Reed, 6th Dist. Wood No. WD-97-031,
1998 WL 102135, 3 (Feb. 27, 1998).
{¶37} Under Crim.R. 29(A), a court “shall order the entry of the judgment of
acquittal of one or more offenses … if the evidence is insufficient to sustain a conviction
of such offense or offenses.” Because a Crim.R. 29 motion questions the sufficiency of
the evidence, the same standard of review applies to Crim.R. 29 motions as is used in
reviewing the sufficiency of the evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417,
847 N.E.2d 386, ¶ 37. We construe the evidence in a light most favorable to
the prosecution and determine whether a rational trier of fact could have found the
essential elements of the offense proven beyond a reasonable doubt. State v. Jenks,
61
Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶38} R.C. 2903.11(A)(2) prohibits felonious assault and provides: “(A) No person
shall knowingly do either of the following: … (2) Cause or attempt to cause physical
harm to another or to another's unborn by means of a deadly weapon or dangerous
ordnance.” A shotgun is a deadly weapon under R.C. 2923.11(A) and (B)(1), which
defines deadly weapons. The evidence shows that Baker fired at least two shots at the
Highland App. No. 23CA9 18
vehicle, one which shattered the passenger-side window and sprayed glass over the
driver.
{¶39} R.C. 2901.22(B) defines the mental state of “knowingly” for purposes of
criminal culpability:
A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably
be of a certain nature. A person has knowledge of circumstances when the
person is aware that such circumstances probably exist. When knowledge
of the existence of a particular fact is an element of an offense, such
knowledge is established if a person subjectively believes that there is a
high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
See also State v. Barry, 145 Ohio St.3d 354,
2015-Ohio-5449,
49 N.E.3d 1248, ¶ 23.
{¶40} Sufficient evidence supports Baker’s conviction. Baker knowingly fired a
shotgun twice at a vehicle travelling on the public roadway in front of her house. Even if
we assume her sole purpose was to “scare the driver” as she argues in her brief, her
“purpose” is not relevant. She was aware that under such circumstances she probably
will cause physical harm to the driver. When we construe this evidence in a light most
favorable to the prosecution, a rational trier of fact could have found the essential
elements of the offense proven beyond a reasonable doubt. We find that trial counsel was
not ineffective when he did not make a Crim.R. 29 motion because it would have been
futile.
{¶41} We overrule Baker’s second assignment of error.
V. CONCLUSION
Highland App. No. 23CA9 19
{¶42} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Highland App. No. 23CA9 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
