[Cite as State v. Smith,
2025-Ohio-4556.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee/ :
Cross-Appellant, No. 23AP-599
: (C.P.C. No. 21CR-2610)
v.
: (REGULAR CALENDAR)
Elias M. Smith,
:
Defendant-Appellant/
Cross-Appellee. :
D E C I S I O N
Rendered on September 30, 2025
On brief: [Shayla D. Favor], Prosecuting Attorney, and
Benjamin Tracy, for plaintiff-appellee/cross-appellant.
Argued: Benjamin Tracy.
On brief: Mitchell A. Williams, Public Defender, and Leon J.
Sinoff, for defendant-appellant/cross-appellee. Argued:
Leon J. Sinoff.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Defendant-appellant/cross-appellee, Elias M. Smith (“Smith”), appeals from
a judgment of the Franklin County Court of Common Pleas convicting him of murder and
the discharge of a firearm on or near a prohibited premises. Plaintiff-appellee/cross-appellant, State of Ohio, challenges the trial court’s decision admitting expert testimony.
I. Facts and Procedural History
{¶ 2} On June 29, 2021, the Franklin County Grand Jury indicted Smith on three
charges. Count 1 accused Smith of murder, alleging he “did purposely cause the death of
Jason Edward Keys,” a violation of R.C. 2903.02 and an unclassified felony. (Indictment
No. 23AP-599 2
at 1.) Count 2 accused Smith of murder, alleging he “did cause the death of Jason Edward
Keys, as a proximate result of . . . Felonious Assault,” a violation of R.C. 2903.02 and an
unclassified felony. (Indictment at 1.) Count 3 accused Smith of discharging a firearm on
or near a prohibited premises for firing “upon or over a public road or highway and the
violation caused serious physical harm,” a violation of R.C. 2923.162 and a first-degree
felony. (Indictment at 2.) Counts 1, 2, and 3 each included a three-year firearm
specification pursuant to R.C. 2941.145(A). These charges arose from the events of
June 20, 2021 near Walnut Hill Park Drive that resulted in the death of Jason Edward Keys
(“Jason”). Smith pled not guilty.
{¶ 3} On July 11, 2023, the state filed a motion in limine to exclude the report and
testimony of Dr. Delaney Smith (“Dr. Delaney”) (no relation to appellant Smith), one of the
witnesses the defense planned to call to testify at trial. On July 17, 2023, the trial court
heard arguments from both sides and denied the state’s motion. The court conducted a
jury trial from July 17 to 21, 2023. The following facts were elicited from evidence
presented at trial.
{¶ 4} The state called Charae Williams Keys (“Charae”) as its first witness. During
her testimony, Charae was a 36-year-old social worker employed by OhioHealth. She grew
up in her grandparents’ home. Robert Thomas (“Mr. Thomas”), along with his wife
Dr. Olivia Thomas (“Dr. Thomas”) and their two daughters, lived just across the street and
two doors down. Charae testified she was friendly with the Thomas daughters while
growing up in the neighborhood. She even invited the Thomas family to her wedding in
2017. At the state’s prompting, Charae recalled two instances prior to June 20, 2021 in
which Mr. Thomas clashed with Charae or her family. In 2011, Charae alleged that
Mr. Thomas brake checked her as she drove on the highway and made an obscene gesture
in her direction. Charae informed her grandfather, Cordell Williams (“Charae’s
grandfather” or “Cordell”), about Mr. Thomas’s actions, prompting him to walk across the
street and discuss the matter with Mr. Thomas. Later, on Thanksgiving in 2018, Charae
recounted her husband Jason using the Thomas’s driveway to turn his car around, an act
that angered Mr. Thomas and led him to verbally confront Jason. Charae next attested to
the events of June 20, 2021. It was Father’s Day, so she asked Jason to accompany her to
visit her grandfather. Twelve members of Charae’s family gathered at her grandparents’
No. 23AP-599 3
house that day, and Jason parked his car on the driveway behind Charae’s aunt’s vehicle.
After the family’s dinner ended, Jason moved his car and parked in the street in front of the
grandparents’ home to allow Charae’s aunt to exit the driveway. Jason re-entered the home
and told Charae it was time to leave. Charae said she exited the home with Jason, her
mother, and her grandfather and walked down the driveway to the car. Jason had just
started the car when Mr. Thomas appeared near the passenger side of the car, holding a
rifle and two magazines, clumsily trying to load them into the rifle. Charae asked
Mr. Thomas what he was doing there, to which Mr. Thomas replied “[h]e didn’t tell you?”
(Tr. Vol. 3 at 502.) Jason came around the car and swatted the magazines out of
Mr. Thomas’s hands. Jason and Mr. Thomas then began struggling over the rifle while
Charae called aloud for help. Charae’s mom screamed upon witnessing the brawl. Charae’s
grandfather entered the fray and told Charae to call 911. Charae crouched behind the car
and called 911, and she described next hearing “pop, pop, pop, pop, pop.” (Tr. Vol. 3 at
486.) She stood up and was hit with shrapnel, causing her to fall back down. Charae
brought herself around the car and screamed as she saw Jason lying lifeless, “blood
everywhere,” with his left arm “half blown off.” (Tr. Vol. 3 at 487.) Mr. Thomas left and
walked back to his house, the rifle and magazines still lying on the street. Charae held
Jason’s body and yelled at those around her to get away. Her grandfather yelled at Smith,
asking him why he did that. Charae testified Smith was standing with his hands on his
head, “looking all shocked.” (Tr. Vol. 3 at 489.) Charae’s grandfather took Smith’s gun
from him, and Smith went back inside his house. Police eventually arrived, secured the
scene, and put Charae into a police car until a detective could speak with her. Charae
testified that Jason was licensed to carry a concealed firearm but she had no recollection of
Jason ever taking his gun out during this confrontation. Charae’s grandfather is also
licensed to carry a concealed firearm but was not carrying a weapon during the scuffle with
Mr. Thomas. At one point, before Jason was shot, he instructed Charae’s mother to bring
him his firearm, but Charae’s mother did not bring the firearm out of the home until after
Jason had been shot. The state next played video clips of the incident taken by an adjacent
home’s security system. The jury also heard the audio recording of Charae’s 911 call.
Charae testified to the verity of the security footage video and the 911 audio. Next, Smith’s
attorney cross-examined Charae. Charae acknowledged she was ducked down behind the
No. 23AP-599 4
car for much of the scuffle involving Mr. Thomas, Jason, and her grandfather, so her
firsthand experience of that portion of the fight is based only on what she heard, rather than
on what she witnessed.
{¶ 5} The state also called Charisse Penn to the stand. Penn is Charae’s mother and
the daughter of Charae’s grandparents, Verna and Cordell Williams. Penn testified she was
standing in the kitchen as Charae and Jason left the home, accompanied by her mother,
Verna. Penn remembered Verna yelling out that Mr. Thomas “has a gun on Jason.”
(Tr. Vol. 3 at 556.) Penn, hearing this, yelled to her father, Cordell, and peeked around the
corner to see Mr. Thomas in a conflict with Jason involving a gun. Penn claimed she ran
out of the house, followed closely thereafter by Cordell. Once outside, Penn tried screaming
and yelling in an attempt to “divert Mr. Thomas’s attention off of whatever he is doing with
Jason and Charae.” (Tr. Vol. 3 at 557.) Penn recounted Charae being pushed away from
the fracas, and eventually Jason and Mr. Thomas simultaneously fell to the ground,
scattering the personal belongings of Mr. Thomas—his keys and wallet—in the street. Then,
in Penn’s telling, both Jason and Mr. Thomas got up off the ground, and Jason held his
hands together with either a magazine or a firearm in his grasp, pointed at the ground.
Penn eventually remembered she told the police the day of the incident that Jason had
indeed pulled out his concealed firearm and had it pointed at the ground. Penn continued,
recounting that her father instructed Mr. Thomas to gather his things and go home. As
Mr. Thomas was picking up his items, Jason was shot, prompting confused cries from Penn
and Cordell. After the shots were fired, Penn saw Smith standing in the doorway of his
home holding a firearm. Penn claimed Cordell then told her to go into the home and bring
out his gun. Not finding a handgun, Penn instead retrieved a rifle. Cordell informed her
she retrieved the wrong gun, but by that point, police arrived and ordered Penn to drop the
weapon and get on her knees.
{¶ 6} The state next called Frederick Lynn Kaufman II to testify. He has served as
a police officer with the Columbus Division of Police for nearly 18 years. Officer Kaufman
testified he was on patrol on June 20, 2021 with Officer Michelle Reynolds-Parra when they
received a call regarding a shooting on Walnut Hill Park Drive. Both officers activated their
body-worn cameras upon arriving at the scene, the video of which was shown to the jury.
Officer Kaufman upon arrival identified two individuals holding firearms, and he and
No. 23AP-599 5
Officer Reynolds-Parra alternated securing the scene and performing CPR on Jason. Once
medics took Jason away, Officer Kaufman separated the witnesses to prevent coordination
of their stories. He also called the SWAT team because they had been informed Smith had
barricaded himself in his house, though he acknowledged Smith after about an hour and
one-half exited his home and willingly surrendered to police. On cross-examination,
Officer Kaufman described his interaction with Daniel Smith (“Daniel”), Smith’s brother,
who had jumped out the back window of his house when he heard gunfire. Daniel told
Officer Kaufman that Smith had returned inside the house along with their two sisters.
Officer Kaufman testified that after receiving this information, another officer took Daniel
to be isolated in a police car while Officer Kaufman stood guard on the scene.
{¶ 7} The state’s next witness was Todd Cress, a crime scene search unit detective.
His primary job responsibilities include processing the scenes of major crimes like
homicides, robberies, and rapes by photographing and collecting evidence. In this case,
Detective Cress testified he went to the scene with three other detectives. Detective Cress
described what each of the 122 photographs taken at the scene depicted. He explained they
discovered seven shell casings just inside the front door of the Smith’s house. Of the four
firearms recovered from the scene of the crime—those belonging to Mr. Thomas, Cordell,
Jason, and Smith—only Smith’s AR-15 had no serial number. Detective Cress described the
lack of a serial number as “not normal.” (Tr. Vol. 3 at 637.)
{¶ 8} The state also called Officer Reynolds-Parra to the stand. At the time of her
testimony, she had served as a Columbus police officer for over 12 years. Her partner that
day was Officer Kaufman, and they were the first officers to respond to the scene. Officer
Reynolds-Parra described that as they arrived, she saw “an older male black and a female
black off to the left of the scene with guns in their hands.” (Tr. Vol. 4 at 655.) Officer
Reynolds-Parra was the first officer to reach Jason, and she rolled his body over and
prepared to conduct CPR. As she rolled him over, her body-worn camera footage captured
black items on the ground near Jason. By his foot was what Officer Reynolds-Parra believed
to be a firearm holster. By Jason’s knee, she testified she saw a small firearm. Under his
elbow was a cell phone. Officer Reynolds-Parra eventually asked Officer Kaufman to take
over performing CPR as she provided cover, fearing the scene could be unsafe as they had
yet to apprehend the shooter. After about 20 minutes, medics arrived and took over
No. 23AP-599 6
resuscitation efforts, and the officers remained at the scene for roughly three hours
establishing a perimeter and gathering information from witnesses. Officer Reynolds-Parra admitted neither she nor any other officer tried to communicate with anyone in
Smith’s home prior to SWAT’s arrival. She testified it took about one hour for SWAT to
arrive.
{¶ 9} The state called Caleb Worley to testify. Worley worked as a forensic scientist
in the firearms identification section of the Columbus Division of Police’s crime laboratory.
After establishing Worley’s credentials, the state without objection asked the trial court to
declare him a firearms and tools examiner expert. Worley examined Smith’s AR-15 and
promptly noticed the gun was missing information that is typically displayed on firearms:
the gun’s serial number, make, and model. Worley also noticed the lower receiver of the
weapon had a “rough finish[].” (Tr. Vol. 4 at 683.) In his opinion, Worley surmised Smith’s
AR-15 was assembled at home using a gun-building kit. Nevertheless, he determined the
AR-15 was operable. Worley, in fact, determined that all four firearms recovered from the
crime scene were operable.
{¶ 10} The state called Ronald A. Lemmon, Jr. to the stand as its final witness. He
is a homicide detective with the Columbus Division of Police, with over 28 years of
experience as a police officer. Detective Lemmon arrived at the perimeter of the scene of
the crime where he waited until SWAT arrested the suspect and secured the area. Based on
his review of the case, Detective Lemmon testified the 911 call was made at 3:37 p.m., and
Smith exited the home and surrendered to the SWAT team at 5:14 p.m.—a delay of about
1 hour and 37 minutes. Once Smith was arrested and transported downtown for
questioning, Detective Lemmon proceeded to the crime scene and acquainted himself with
the area and the witnesses. He then traveled to police headquarters downtown, where he
first interviewed Mr. Thomas who had been taken in and interviewed as a witness. In
Detective Lemmon’s opinion, Mr. Thomas’s rationale for his actions that day were
“[a]bsolutely not” rational. (Tr. Vol. 4 at 720.) After his discussion with Mr. Thomas,
Detective Lemmon interviewed Smith. He began the interview by reading Smith his
Miranda rights. The interview with Smith was recorded and entered into the record
without objection. Detective Lemmon highlighted some inconsistencies between Smith’s
interview and the video and physical evidence. For one thing, Smith claims he saw a woman
No. 23AP-599 7
with a pump-action rifle before he opened fire, but Detective Lemmon noted both video
and testimonial evidence revealed there was no pump-action rifle and Penn did not carry
her father’s rifle out of the house until after Smith shot Jason. Furthermore, the rifle carried
by Penn never reached the street where the fight had taken place, as police were on the
scene and had Penn drop the weapon in her parents’ driveway. A second inconsistency
noted by Detective Lemmon involved the number of shots fired. Detective Lemmon
claimed Smith said he fired only three shots, but eight shell casings were recovered from
inside the front door of Smith’s home.
{¶ 11} The state rested its case. Smith’s attorney moved for a Crim.R. 29 dismissal
which the trial court denied. At this point, the state renewed its motion in limine that asked
the court to exclude the report and testimony of Dr. Delaney, arguing that psychiatric
testimony cannot be used to support a self-defense claim except for battered woman
syndrome or child battered syndrome, neither of which was applicable here. Defense
counsel conceded the court should issue an instruction limiting this expert testimony to
consideration of the characteristics, circumstances, and conditions of Smith at the time of
the incident. The court ruled in favor of the defense and allowed the testimony of
Dr. Delaney to proceed, with the limiting instruction that the jury could only consider the
expert testimony to discern Smith’s “particular characteristics, knowledge or lack of
knowledge, circumstances, history, and conditions at the time of the incident.” (Tr. Vol. 4
at 793.)
{¶ 12} The defense called Dr. Delaney as its first witness. In preparation for this
case, Dr. Delaney interviewed Smith and reviewed his medical records. She did not
personally conduct testing on Smith because she believed the medical records were
sufficient to diagnose him with post-traumatic stress disorder (“PTSD”) and traumatic
brain injury (“TBI”). Dr. Delaney recounted Smith’s medical reports described an assault
he suffered while in the military led to his diagnoses of both PTSD and TBI. She began by
discussing potential symptoms of PTSD generally, including the claims that a person with
PTSD may have “increased hypervigilance” and thereby be “very easily startled” and
“always on the lookout for some kind of danger.” (Tr. Vol. 4 at 805.) Specifically in regard
to Smith, Dr. Delaney alleged Smith “had a heightened startle response” and feared “danger
around every corner.” (Tr. Vol. 4 at 806.) Dr. Delaney next described TBI as potentially
No. 23AP-599 8
causing “difficulty with judgment” and impairment of memory, concentration, and motor
functions. (Tr. Vol. 4 at 807.) As to Smith’s specific TBI symptoms, Dr. Delaney cited his
headaches, ringing in his ears, blurry vision, irritability, and impulsivity. Defense counsel
had Dr. Delaney reiterate that her testimony on Smith’s symptoms was not based on any
testing she conducted, but rather on her review of Smith’s existing medical records.
Dr. Delaney imagined Smith’s PTSD and TBI colored his reaction to the scene he witnessed
in the street. She speculated Smith was thinking, “I have got to act now because people are
in danger, my family is in danger, my neighbors are in danger, I have to make a decision at
this moment.” (Tr. Vol. 4 at 813.) The state cross-examined Dr. Delaney who
acknowledged Smith’s medical records lacked any definitive diagnosis of PTSD and
contained conflicting evidence regarding his diagnosis of TBI. The state further elicited the
fact that Dr. Delaney did not watch the video of the shooting in this case, nor did she listen
to the recording of Smith’s police interrogation after the shooting.
{¶ 13} The defense next called Eliza Smith to testify. Eliza is Smith’s sister who was
16 years old at the time she testified at trial and 14 years old at the time of the shooting. She
recounted Smith was more depressed and irritable upon returning from his military
service. Eliza testified that on June 20, 2021, she was at her family’s home with her four
siblings: Naomi, Daniel, Malachi, and Smith. Upon witnessing the fight break out on the
street, Eliza was on the home’s ground level with Smith. They did not exchange any words,
but Eliza remembered she was afraid and ran upstairs to her younger sister, Naomi. Eliza
and Naomi hid in a bedroom closet where they eventually heard loud gunshots. After the
shots were fired, Smith told Eliza and Naomi to go hide in the basement. They complied
and hid in the basement until police arrived. On cross-examination, Eliza clarified she saw
“the old man,” referring to Mr. Thomas, in possession of a gun and in confrontation with
Jason and Charae. (Tr. Vol. 4 at 874.) Eliza claimed she had no memory of police knocking
or asking anyone inside the home to come outside. She believed Smith stored his guns and
ammunition in the basement where he lived, and so would likely have had to go downstairs
after witnessing the fight scene outside, retrieve the gun, and then return to the home’s
ground level.
{¶ 14} The defense next called Naomi Smith to the stand. Naomi is Smith’s sister
who was 14 years old when she testified at trial and 12 years old at the time of the shooting.
No. 23AP-599 9
Naomi was in her bedroom when she heard screaming outside. Eliza then came upstairs,
and their brother Malachi told them to get down. Naomi and Eliza hunkered down in the
bedroom closet together. They heard gunshots, and soon thereafter Smith yelled from
downstairs that Naomi and Eliza should go hide in the basement. They stayed in the
basement for more than 45 minutes, and Naomi could hear police sirens outside and a
helicopter over their home. She claims she never heard anyone speaking over a bullhorn
until, eventually, someone speaking over a speaker told Smith first, then the other siblings,
to come outside. On cross-examination, Naomi testified Smith came to the basement a
couple times while she, Eliza, and Malachi were hiding out, and informed them he killed
someone and would be going to jail. Naomi believed Smith knew police were outside
because he spent most of his time in the house on the ground level where he could
presumably see the scene outside.
{¶ 15} Finally, the defense called Elias Smith to the stand. Smith testified his
siblings look up to him and he sees his role as a protector of his family. Smith was 26 years
old at the time of his testimony. He testified that when he was 17 years old, he worked at
Walmart and walked to and from work. One day as he walked home, he was ambushed and
knocked unconscious by three men. This left him afraid to go outside. Eventually, on
October 16, 2016, Smith enlisted in the United States Marine Corps. While Smith was
training as a Marine at a military base, he claims he was exiting the camp’s living quarters
while wearing shower shoes when another Marine, who Smith “kind of knew,” stepped in
Smith’s path. (Tr. Vol. 5 at 922.) Smith alleged this Marine “suddenly grab[bed]” him by
the head and wrapped his arms around Smith’s neck. (Tr. Vol. 5 at 923.) The Marine began
to choke Smith. Smith claims he blacked out and “smacked [his] head on the concrete”
floor. (Tr. Vol. 5 at 923.) Smith testified he was diagnosed with a TBI. He claims he told
his doctors he was injured by “horseplay” because, in Smith’s own words, the other Marine
“didn’t want me to snitch.” (Tr. Vol. 5 at 926.) Smith also testified his TBI resulted in
lasting symptoms of headaches, confusion, and numbness in the extremities, but that he
“never got that checked up on.” (Tr. Vol. 5 at 930.) Smith was eventually discharged from
the Marine Corps and moved back into his mother’s home on Walnut Hill Park Drive.
Smith bought an AR-15 firearm ostensibly for home defense in summer 2019. He
No. 23AP-599 10
purchased the AR-15 as an assembly kit because he saw such assembly as a hobby. Prior to
the shooting on June 20, 2021, Smith had never fired this weapon.
{¶ 16} On the day of the shooting, Smith testified he was in his home’s ground level
when he heard his sister yell from upstairs that there were people outside with guns. Smith
next heard a “horrifying scream” from a woman outside, so he ran down to his room in the
basement to retrieve his phone and firearm. (Tr. Vol. 5 at 952.) Unable to find his phone,
he grabbed his AR-15, charged the rifle, and walked upstairs to the front door. Smith
described feeling “pretty panicked” as he opened the front door. (Tr. Vol. 5 at 957.) Smith
stepped out of his home and partially closed the door behind him. Standing outside on his
front porch, Smith noticed “three or four males, two females” in the street. (Tr. Vol. 5 at
958.) Smith recalled that one woman, Charae, was wearing a gray shirt and standing near
the front, left side of the parked car. Smith worried “she was hurt or assaulted” because she
seemed to be panicking and “clenching her abdominal area.” (Tr. Vol. 5 at 959.) The only
person Smith could identify was Cordell Williams. Smith also saw Mr. Thomas, whom he
described as “an older black man, darker skin.” (Tr. Vol. 5 at 960.) Smith next described
Jason, “a fairer skinned male . . . bald head, behind the left rear passenger side of his car.”
(Tr. Vol. 5 at 960.) Smith witnessed another woman in a pink shirt, Penn, and relayed that
she was panicking and screaming. Other than Cordell, Smith learned the identities of all
these individuals only after the fact. Smith heard Cordell say “drop the gun,” and he
deduced that because Jason appeared to be “holding an object” with “his left rear passenger
door” open, Smith believed Jason was holding a gun and “trying to raise the firearm.”
(Tr. Vol. 5 at 961.) Smith elaborated:
The only person I saw as a threat at that time was the person
that I was completely unfamiliar of, never saw him, never saw
his face, never spoke to him, brandishing a firearm, left rear
passenger . . . door open, appearing to have retrieved or
attempting to retrieve a firearm out of the car.
(Tr. Vol. 5 at 963.) Based on the fact there were multiple firearms outside, Smith believed
others were in imminent danger of being shot. Smith raised his weapon’s muzzle and fired
an indeterminate number of shots at Jason until he dropped and became immobile. Smith
aimed for the torso and pelvic area. Smith heard screaming and a voice asking why
someone just shot their husband. Smith approached the scene but was not keen on
No. 23AP-599 11
observing the injuries to the victim because Jason’s “arm was messed up,” and as he neared
the group, Cordell asked Smith if he was the shooter. (Tr. Vol. 5 at 968.) Cordell explained
Jason was not the threat, and Smith claims it was only then he realized he had made a
mistake. Smith complied with Cordell’s order to drop his weapon and go back in his house.
Upon returning inside, Smith explained what happened to his siblings Malachi, Eliza, and
Naomi, and took them all down in the basement and told them to stay there until the
situation was resolved. Smith returned to the ground level and, looking out a window,
observed two police officers outside. One officer used a lawn chair from another house as
a rest to aim an “AR type rifle” at Smith, but, when Smith with both hands up, yelled out
the window and asked for permission to safely exit the home, he received no reply.
(Tr. Vol. 5 at 974.) Smith wondered at this point why officers were not allowing him to
leave his house. Smith testified the officers could clearly see him through his window, and
he repeatedly yelled out to ask if it was safe to exit the home. After a long while, Smith
heard police on a bullhorn command him to exit the home with his hands up. He complied
and was placed in the back of a police cruiser. On the stand, Smith expressed remorse for
his actions and wished he could take the whole situation back.
{¶ 17} Next, the state cross-examined Smith. Smith testified he believed he was
defending Cordell, Charae, and Penn by firing at Jason that day. When pressed by the state,
Smith admitted he also intended to defend Mr. Thomas, though Smith was quick to point
out that if he had known all the facts, he would have viewed Mr. Thomas as the threat rather
than Jason. The state then initiated the following exchange:
[THE STATE:] So your justification for murdering Jason Keys
is defense of another, and the “others” are the people outside;
is that right?
[SMITH:] I don’t know about murder, sir.
[THE STATE:] No. No. It’s murder.
(Tr. Vol. 5 at 987.) At that point, Smith’s counsel objected to the use of “murder” to describe
the shooting. Later, the state similarly described Smith’s shooting as “murder and firing
across a roadway,” which prompted another objection from Smith’s counsel. (Tr. Vol. 5 at
998.) The trial court initially sustained this second objection, but after an off-the-record
sidebar conference, the court overruled the objection and allowed the state’s counsel to
No. 23AP-599 12
proceed. The state next called into question Smith’s testimony about where he stood as he
fired the shots: Smith claims he stepped out onto his front porch prior to firing, whereas
the state suggested that because the evidence depicted the spent shell casings inside the
home’s entryway, Smith must have fired from inside his home’s threshold. Despite
repeated attempts by the state to have Smith answer whether his killing of Jason was
reasonable, Smith declined to answer. Once the state completed its cross-examination, the
defense rested its case.
{¶ 18} After both sides rested, the trial court and the parties proceeded to review the
proposed jury instructions outside the presence of the jury. The first point of contention
involved the barricade instruction, as Smith’s counsel asserted the state presented no actual
evidence that Smith barricaded himself in the home and so an instruction on that issue
would be improper. The court disagreed and allowed the barricade instruction to remain.
Next, the parties agreed and the court indicated its intent to strike references to self-defense
and instead reference only defense of another, the only affirmative defense Smith asserted
in this case. After some wording clarifications and disagreements over the prevailing case
law as it relates to defense of another, the court finalized its jury instructions. The parties
next presented their closing arguments to the jury. Finally, the court instructed the jury in
the law of the case and the jury began its deliberations.
{¶ 19} On July 24, 2023, the jury delivered a verdict of guilty on two counts of
murder, both with firearm specifications, and one count of discharge of a firearm on or near
prohibited premises with a firearm specification. On September 25, 2023, the trial court
sentenced Smith to an indefinite term of 21 years to life in prison. Smith timely appealed.
The state timely cross-appealed.
II. Assignments of Error
{¶ 20} Smith assigns the following eight errors for our review:
[I.] Pervasive Errors and Deficiencies in the Jury Instructions
Violated Mr. Smith’s Constitutional Rights to a Fair Trial and
Due Process of Law.
[II.] Defense Counsel’s Failure to Object to Pervasive Errors
and Deficiencies in the Jury Instructions Constituted
Constitutionally Ineffective Assistance of Counsel.
No. 23AP-599 13
[III.] Permitting the Jury to Impute Guilt to Mr. Smith, via a
So-Called “Barricade Instruction,” Undermined Appellant’s
Presumption of Innocence and Eroded the Prosecution’s
Burden of Proof, thus Denying Appellant His Constitutional
Rights to a Fair Trial and Due Process of Law.
[IV.] The Prosecutor’s Pervasive and Inflammatory
Misstatements of Law Asserting that Appellant “Murdered”
the Deceased, Irrespective of Appellant’s Claim of Defense-ofOthers, Deprived Mr. Smith of His Constitutional Rights to a
Fair Trial and Due Process of Law.
[V.] Defense Counsel’s Failure to Object, On All Occasions
But One, to the Prosecutor’s Pervasive, Prejudicial
Misstatements of Law Was Constitutionally Ineffective
Assistance of Counsel.
[VI.] Mr. Smith Was Denied the Effective Assistance of
Counsel via Defense Counsel’s Failure to Adequately Prepare
the Sole Expert Psychiatric Witness for Her Testimony, When
Counsel Failed to Apprise Her of the Existence of Key Case
Materials Indispensable to a Proper Expert Review, or to
Instruct Her to Personally Conduct Testing to Reconfirm
Mr. Smith’s Psychiatric Diagnoses.
[VII.] Mr. Smith Was Deprived of a Fair Trial, Due Process of
Law, and the Effective Assistance of Counsel via Cumulative
Error and Cumulative Ineffectiveness.
[VIII.] Mr. Smith’s Convictions Are Contrary to the Manifest
Weight of the Evidence.
(Emphasis in original.)
{¶ 21} The state, as cross-appellant, assigns the following error for our review:
The trial court’s decision admitting expert testimony and
opinions that failed to meet the requirements set forth in
Evid.R. 702(A) constituted an abuse of discretion.
III. Analysis
{¶ 22} In his first assignment of error, Smith asserts the trial court erred in failing
to instruct the jury on how to apply its finding on his defense-of-another affirmative
defense.
No. 23AP-599 14
{¶ 23} Smith did not object to this particular aspect of the jury instructions and
consequently forfeited all but plain error. State v. Love, 2017-Ohio-8960, ¶ 20 (1st Dist.);
See Crim.R. 30(A). Plain error exists when (1) there is error, (2) the error is an obvious
defect in the trial proceedings, and (3) the error affects substantial rights. State v. D.W.,
2019-Ohio-2193, ¶ 7 (10th Dist.), citing State v. Barnes,
94 Ohio St.3d 21, 27 (2002). An
error impacts substantial rights if the defendant establishes a reasonable probability the
error affected the outcome of the trial. Barnes; State v. Roundtree,
2021-Ohio-3825, ¶ 86
(10th Dist.). For this court to reverse on the basis of plain error, the error must undermine
confidence in the trial’s outcome. Roundtree. Appellate courts recognize plain error with
the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice. D.W., citing Barnes.
{¶ 24} In the present case, the trial court instructed the jury on the defense-of-another affirmative defense. After describing the various elements and definitions of
defense of another, the court explained: “[t]he State need only disprove one element of the
defense by proof beyond a reasonable doubt. Defense of another does not deny the
existence of the act, it simply provides a justification for it.” (Tr. Vol. 5 at 1140.) The court
omitted any instruction for how the jury ought to proceed after making its decision on the
defense-of-another affirmative defense. While this court “recognize[s] that the Ohio Jury
Instructions are not binding legal authority,” we nevertheless find consistency with the
language of the Ohio Jury Instructions (“OJI”) to be significant. State v. Patterson, 2025-
Ohio-280, ¶ 67 (10th Dist.), citing State v. Aekins, 2023-Ohio-322, ¶ 118 (10th Dist.). Here,
the relevant OJI would instruct a jury it “must find the defendant not guilty” if the state
failed to prove the defendant did not act in defense of another. 2 Ohio Jury Instructions,
CR § 421.191(15) (Rev. Nov. 5, 2022). The court’s jury instructions contained no such
directive.
{¶ 25} As to the first element of the plain error analysis, we find the trial court erred
by providing an incomplete jury instruction that failed to direct the jury on how to apply a
potential finding of defense of another. See Love at ¶ 21-22. This omission “left the jury
uninformed as to how proof of the affirmative defense operates in relation to the verdict
which that proof requires.” (Internal quotations deleted and citation omitted.)
Love at
¶ 22.
No. 23AP-599 15
{¶ 26} Second, the error is an obvious defect in the trial proceedings. “Trial courts
have a responsibility to give all jury instructions that are relevant and necessary for the jury
to properly weigh the evidence and perform its duty as the fact finder.” Sanders v. Fridd,
2013-Ohio-4338, ¶ 18 (10th Dist.), citing State v. Comen,
50 Ohio St.3d 206 (1990),
paragraph two of the syllabus. Essential to the jury’s duty as factfinder is the application of
its factual conclusions to the verdict. Because the trial court failed to fully explain this
crucial step, we find the error to be an obvious defect.
{¶ 27} Third, the error impacts Smith’s substantial rights because there was a
reasonable probability it affected the outcome of the trial. Though it would be folly to
confidently predict the result of a hypothetical error-free trial, this court believes the
omission of a vital jury instruction—explaining how an affirmative defense relates to the
verdict—certainly risks causing a manifest miscarriage of justice. D.W., 2019-Ohio-2193,
at ¶ 7 (10th Dist.), citing Barnes,
94 Ohio St.3d at 27. Without such an instruction, it is
conceivable the jury found Smith satisfied the elements of defense of another and yet,
lacking guidance from the court about the significance of that conclusion, improperly
rendered a verdict of guilty. There was enough evidence presented in this case to support
a jury’s conclusion that Smith satisfied the elements of defense of another. The element
primarily at issue here was whether Smith, “in good faith and upon reasonable ground,”
believed the people he claimed to be defending were in imminent danger of death or great
bodily harm. State v. Young,
2005-Ohio-5489, ¶ 30 (10th Dist.). Smith testified to his
belief that Cordell, Charae, and Penn were in imminent danger of being shot. He testified
to his belief that Jason was holding a firearm, and that he heard Cordell instruct someone
to “drop the gun.” (Tr. Vol. 5 at 961.) Smith testified he observed Jason “trying to raise the
firearm.” (Tr. Vol. 5 at 961.) Smith came upon a chaotic scene involving multiple firearms
and panicked screams. If the jury believed Smith’s testimony, it may have concluded Smith
was justified in firing his weapon in defense of another.
{¶ 28} The dissent, conversely, concludes the omission of the jury instruction did
not with reasonable probability prejudice Smith and undermine confidence in the trial. It
reaches this conclusion in part because it does not believe “there is a reasonable probability
the jury would have found that it was objectively reasonable for [Smith] to believe that
Charae, Penn, Cordell, and Mr. Thomas were in imminent or immediate danger of death or
No. 23AP-599 16
great bodily harm.” (Dissent at ¶ 29.) Specifically, the dissent supports its belief by
underscoring the following facts: (1) two of the individuals Smith claimed to be defending
were holding firearms; (2) Cordell’s weapon was pointed down at the ground; (3) Smith
believed Penn and Cordell were trying to stop Jason from hurting someone; and (4) Charae,
crouched behind the car, would not have been in what Smith feared was Jason’s line of fire.
A reasonable jury, however, could have acknowledged all these facts and still found Smith
acted in defense of another. First, possession of a firearm does not negate the danger posed
by another person with a firearm. Even holding a firearm, a person may nevertheless be in
imminent danger of death or great bodily harm. Second, the fact that Cordell’s weapon was
pointed at the ground may indicate he was not in imminent danger, as the dissent suggests,
or it may indicate some other hypothetical altogether. A reasonable jury could have
interpreted the direction of the barrel of Cordell’s firearm to mean any number of things,
including scenarios in which Cordell was in great danger. Third, Smith believed Penn and
Cordell were trying to stop Jason from firing a weapon, yet a reasonable jury might have
concluded, based on Smith’s perception of the incident, their attempted interventions were
unsuccessful and Smith felt compelled to intervene. Fourth, even if Charae was not directly
in what Smith believed to be Jason’s line of fire, the jury may still have believed that in
Smith’s mind, Charae could have been in mortal danger had a bullet pierced through the
car door or had the line of fire quickly changed. A thorough review of the evidence leads us
to conclude the jury could have interpreted the complex facts of this case any number of
ways, including that Smith’s actions were justified by the defense-of-another affirmative
defense. Thus, there was a reasonable probability the trial court’s failure to properly
instruct the jury affected the outcome of the trial.
{¶ 29} Other courts have found similar jury instruction errors to be reversible even
without explicitly employing the typical “reasonable probability” plain error standard.
They found incomplete instructions like the one here “prevented the jury from properly
applying the law to reconcile any finding on the affirmative defense with its finding that the
state had proved the elements of [murder] beyond a reasonable doubt.” Love, 2017-Ohio-
8960, at ¶ 23 (1st Dist.); see State v. Roberts, 109 Ohio App.3d 634, 639 (6th Dist. 1996)
(“[T]he trial court’s erroneous instructions prevented the jury from properly applying the
law and thereby affected [the] appellant’s substantial rights and resulted in a manifest
No. 23AP-599 17
miscarriage of justice.”). Given the present case involves a trial for murder, these are
indubitably “exceptional circumstances” that demand the correction of an error as
potentially significant as this one. D.W. at ¶ 7.
{¶ 30} Accordingly, because we find the court committed plain error by failing to
properly instruct the jury, we sustain Smith’s first assignment of error. We are thus
obligated to reverse Smith’s convictions and remand for a new trial.
{¶ 31} Smith’s seven remaining assignments of error allege ineffective assistance of
counsel, jury instruction errors, prosecutorial misconduct, cumulative error, and a
challenge based on the manifest weight of the evidence. Our decision to sustain Smith’s
first assignment of error, and consequently to vacate his convictions and remand for a new
trial, means these seven other assignments of error are “no longer live.” Columbus
Prosecutors Office v. J.M., 2023-Ohio-3555, ¶ 31 (10th Dist.). “[A]n assignment of error is
moot when an appellant presents issues that are no longer live as a result of some other
decision rendered by the appellate court.” State v. Gideon,
2020-Ohio-6961, ¶ 26; see State
v. Solt,
2023-Ohio-2779 (10th Dist.) (rendering moot a challenge to the manifest weight of
the evidence). Accordingly, we render as moot Smith’s second, third, fourth, fifth, sixth,
seventh, and eighth assignments of error.
{¶ 32} In its sole cross-assignment of error, the state asserts the trial court abused
its discretion in admitting expert testimony and opinions that failed to meet the
requirements of Evid.R. 702(A). Having sustained Smith’s first assignment of error, the
state’s cross-assignment of error is no longer a live issue. Accordingly, we render as moot
the state’s sole cross-assignment of error.
IV. Conclusion
{¶ 33} Having sustained Smith’s first assignment of error, we render as moot his
second, third, fourth, fifth, sixth, seventh, and eighth assignments of error. We likewise
render as moot the state’s sole cross-assignment of error. Accordingly, we vacate Smith’s
convictions and sentence, reverse the judgment of the Franklin County Court of Common
Pleas, and remand for a new trial in accordance with law and consistent with this decision.
Judgment reversed;
cause remanded.
DINGUS, J., concurs.
DORRIAN, J., concurs in part and dissents in part.
No. 23AP-599 18
Dorrian, J., concurring in part and dissenting in part.
{¶ 34} I concur in part and dissent in part. I concur with the majority that the trial
court committed obvious error by omitting the jury instruction on how to apply the defense-of-another affirmative defense. However, I dissent that the error affected Smith’s
substantial rights and further explain below the reasons for my conclusion. First, I will
address the state’s arguments that as a matter of law Smith was not legally entitled to assert
the defense-of-another affirmative defense. Second, I will consider the entire record and
will address whether Smith has demonstrated a reasonable probability that the error
resulted in prejudice to him.
I. Smith was legally entitled to assert the defense-of-another affirmative
defense
{¶ 35} The state argues that, as a matter of law, Smith cannot show he was
prejudiced by the erroneously omitted jury instruction language because he was not legally
entitled to act in defense of Charae, Penn, Cordell,1 or Mr. Thomas by using force against
Jason. See State’s Brief at 14-19, 23-24. First, the state argues that Smith could not have
legally acted in defense of Charae, Penn, Cordell, or Mr. Thomas because “none of Jason’s
family members had a ‘bona fide belief that he [or she] was in imminent danger of death or
great bodily harm’ at the hands of Jason Keys.” (State’s Brief at 16-17.) Second, the state
argues that Smith could not have legally acted in defense of Charae, Penn, Cordell, or
Mr. Thomas because Jason did not start the affray. Third, the state argues that Smith could
not have legally acted in defense of Mr. Thomas because Mr. Thomas started the
altercation. Fourth, the state argues that Smith could not have legally acted in defense of
Charae, Penn, Cordell, or Mr. Thomas because Smith reinitiated or escalated the fight.
{¶ 36} I begin by noting the instructions the trial court gave at trial regarding
defense of another:
To prove defendant’s use of deadly force was not in defense of
another, the State must prove only one of the following: One,
the persons he is claiming to have defended were at fault in
creating the situation given rise to the affray; two, the
defendant did not have reasonable grounds to believe that the
people he claimed to have defended were in imminent or
immediate danger of death or great bodily harm; or three, the
defendant did not have an honest belief, even if mistaken, that
1 Smith, several witnesses, and the state refer to Cordell as “Williams” or “Sterling.”
No. 23AP-599 19
the people he claims to have defended were in imminent
danger of death or great bodily harm; four, the people he
claimed to have defended violated the duty to retreat; or five,
the defendant used unreasonable force.
(Tr. Vol. 5 at 1137-38.) The instructions went on to describe each element of the defense in
greater detail.2
{¶ 37} In its first argument, the state argues that Smith was not entitled to act in
defense of Charae, Penn, Cordell, and Mr. Thomas because they did not have a bona fide
belief they were in imminent danger at the hands of Jason. The relevant instruction which
the trial court gave regarding the bona fide belief requirement was: “To prove defendant’s
use of deadly force was not in defense of another, the State must prove only one of the
following . . . three, the defendant did not have an honest belief, even if mistaken, that the
people he claims to have defended, were in imminent danger of death or great bodily harm.”
(Emphasis added.) (Tr. Vol. 5 at 1138.) This instruction to consider the bona fide belief of
Smith, as the defendant, is consistent with our case law and with the Ohio Jury Instructions.
See State v. Harris, 129 Ohio App.3d 527, 537 (10th Dist. 1998) (“it is the defendant’s good
faith and reasonable belief in the imminent danger to the person defended and the
concomitant need for the use of force, not the knowledge or belief of the person being
defended, that warrants the instruction on the privilege”) (emphasis added); State v.
Williford,
49 Ohio St.3d 247, 250 (1990); 2 Ohio Jury Instructions, CR § 421.211 (Rev.
Jan. 25, 2025). Therefore, the state’s argument that the focus of the instruction should be
to consider the bona fide belief of Charae, Penn, Cordell, and Mr. Thomas is incorrect.
{¶ 38} Furthermore, what the state argues now is different from what it argued for
and agreed to at trial. During the jury instructions conference, the state agreed that the
third element of the defense should be stated as follows: [Prosecutor Zeyen:] . . . “The
defendant did not have an honest belief, even if mistaken, that the people he claims to have
defended were in imminent or immediate danger or bodily harm.” (Emphasis added.)
(Tr. Vol. 5 at 1058.) The state also directed how the element should be described in greater
2 Smith provides examples from the Ohio Jury Instructions of the omitted language, including 2 Ohio Jury
Instructions, CR § 421.211, which states in relevant part: “If you find that the state failed to prove beyond a
reasonable doubt any of the elements of (insert name of applicable offense[s]) or if you find that the state
failed to prove beyond a reasonable doubt that the defendant did not act in defense of another, you must
find the defendant not guilty.” (Emphasis added.)
No. 23AP-599 20
detail: “We should insert, ‘Then if the objective standard3 is met, then you must subjectively
consider if the particular defendant had an honest belief that the persons he claims to have
defended were in imminent danger.’ ” (Emphasis added.) (Tr. Vol. 5 at 1077.)
{¶ 39} The jury instructions given by the trial court, to which the state agreed,
directed the jury to view the circumstances through the lens of Smith’s bona fide or “honest”
belief, even if mistaken (a subjective view). Yet the state now argues that the affirmative
defense requires a jury to view the circumstances through the lens of the persons defended.
As noted above, Supreme Court of Ohio and Tenth District Court of Appeals case law holds
otherwise. Furthermore, the state agreed to the instructions requiring the jury to view the
circumstances through the lens of Smith’s honest belief, and, therefore, the state waived the
argument it now makes.
{¶ 40} Accordingly, I am not persuaded by the state’s argument that Smith was not
entitled to act in defense of Charae, Penn, Cordell, and Mr. Thomas because they did not
have a bona fide belief they were in imminent danger at the hands of Jason.
{¶ 41} In its second argument, the state argues that Smith was not entitled to act in
defense of Charae, Penn, Cordell, and Mr. Thomas because Jason did not start the affray.
The relevant instruction which the trial court gave regarding the “at fault” requirement was:
“To prove defendant’s use of deadly force was not in defense of another, the State must
prove only one of the following . . . One, the persons he is claiming to have defended were
at fault in creating the situation given rise to the affray[.]” (Emphasis added.) (Tr. Vol. 5 at
1137.) This instruction to consider whether the persons defended were at fault starting the
affray, and not the deceased, is consistent with our case law and with the Ohio Jury
Instructions. See State v. Wenger, 58 Ohio St.2d 336, 339-40 (1979) (“A person who
intervenes in a struggle and has no duty to do so, acts at his own peril if the person assisted
was in the wrong. . . . The recurring theme is that one who intervenes to help a stranger
3 Regarding the second element, or the objective standard, the state also agreed that the jury should consider
whether Smith, not the persons he protected, had reasonable grounds to believe that the people he claimed to
have defended were in imminent or immediate danger of death or great bodily harm. At the jury instruction
conference, Smith’s counsel noted that “it’s the defendant is the one who has reasonable grounds to believe.
It’s not the person he is claiming to defend would have reasonable grounds to believe,” and further, “the test
of reasonable grounds isn’t whether or not the person being defended knew, it’s what -- it’s the defendant.”
(Tr. Vol. 5 at 1056.) The prosecutor responded in agreement: “Right. The defendant did not have reasonable
grounds to believe that the person he claims to have defended was in imminent or immediate danger of death
or great bodily harm.” (Emphasis added.) (Tr. Vol. 5 at 1056.)
No. 23AP-599 21
stands in the shoes4 of the person whom he is aiding, and if the person aided is the one at
fault, then the intervenor is not justified in his use of force and is guilty of an assault.”)
(Emphasis added.); Harris,
129 Ohio App.3d at 538 (“a defendant is entitled to an
instruction on the privilege [of defense of another] if there is evidence sufficient to allow a
reasonable jury to find that: . . . the person defended was not at fault in creating the
situation giving rise to the death of the victim[.]” (Emphasis added.); 2 Ohio Jury
Instructions, CR § 421.211 (Rev. Jan. 25, 2025). Therefore, the state’s argument that the
focus of the instruction should be to consider whether Jason started the affray is incorrect.
{¶ 42} Furthermore, again, what the state argues now is different from what it
argued and agreed to at trial. During the jury instructions conference, the state requested
that the focus regarding who was at fault be on Charae, Penn, Cordell, and Mr. Thomas.
[Prosecutor] Zeyen: So the language will be, “The defendant
stands in the shoes of the person he claims to have defended.
The defendant did not act in defense of another if the State
proved beyond a reasonable doubt that the people he claims to
have defended were the ones at fault in creating the situation
that resulted in the injury or death. . . . The people he claims to
have defended were at fault if they were the initial aggressors
and did not escalate the situation by being the first to use
deadly force.”
(Emphasis added.) (Tr. Vol. 5 at 1076.)
{¶ 43} The jury instructions given by the trial court, to which the state agreed,
directed the jury to stand in the shoes of the persons being defended and determine if they
started the affray. Yet the state now argues that the affirmative defense requires the jury to
stand in the shoes of Jason, the deceased, and determine if he started the affray. As noted
above, Supreme Court of Ohio and Tenth District Court of Appeals case law holds
otherwise. Furthermore, as noted above, the state agreed to the instructions requiring the
4 The “stands in the shoes of the person whom he is aiding” instruction applies to the first element of defense-
of-another affirmative defense—that the persons being defended must not have been at fault. However, at trial
and before this court on appeal, the state attempts to extend the “stand in the shoes of the person whom he is
aiding” instruction to the other elements of defense of another. To no avail. The “stand in the shoes of the
person whom he is aiding” perspective applies only to the first element regarding “fault” and the fourth
element regarding “duty to retreat.” The second element regarding “reasonable belief” and the fifth element
regarding “reasonable force” are objective standards. Finally, the third element regarding “bona fide belief”
requires the fact finder to stand in the shoes of the defendant, the person asserting the defense, not the shoes
of the person whom he is aiding.
No. 23AP-599 22
jury to consider whether Charae, Penn, Cordell, and Mr. Thomas were at fault, and,
therefore, the state waived the argument it now makes.
{¶ 44} Accordingly, I am not persuaded by the state’s argument that Smith was not
entitled to act in defense of Charae, Penn, Cordell, and Mr. Thomas because Jason was not
at fault in starting the affray.
{¶ 45} In its third argument, the state argues that Smith was not entitled to act in
defense of Charae, Penn, Cordell, and Mr. Thomas because Mr. Thomas started the
altercation. As noted above, the relevant instruction which the trial court gave regarding
the “at fault” requirement was: “To prove defendant’s use of deadly force was not in defense
of another, the State must prove only one of the following . . . One, the persons he is claiming
to have defended were at fault in creating the situation given rise to the affray[.]” (Tr. Vol.
5 at 1137.) The state is correct that the evidence reveals that Mr. Thomas started the
altercation or the affray. However, the state concedes in its brief that Smith testified that
he was defending not only Mr. Thomas, but also Charae, Penn, and Cordell too. (State’s
Brief at 15, citing Tr. Vol. 5 at 962-64, 985-87, 996-98, 1041-43.) Although the evidence
showed that Mr. Thomas started the affray, there was no evidence, and the state does not
argue, that the other persons Smith claimed he defended started the affray.
{¶ 46} Accordingly, I am not persuaded by the state’s argument that Smith was not
entitled to act in defense of Charae, Penn, and Cordell because Mr. Thomas started the
altercation.
{¶ 47} In its fourth argument, the state argues that Smith was not entitled to act in
defense of Charae, Penn, Cordell, and Mr. Thomas because Smith reinitiated or escalated
the fight. Unlike the state’s first three arguments addressed above, which raised legal
questions regarding the proper wording of the instructions, this argument raises an
evidentiary question.
{¶ 48} The state requested, Smith agreed, and the court instructed the jury that
“Defendant is not in a position to claim defense of another if he sought trouble and, armed
with a dangerous weapon, provoked a fight or renewed a fight that had broken off and did
not attempt to avoid the trouble.” (Tr. Vol. 5 at 1076-77.)
{¶ 49} The state argues that Smith was not in a position to claim the defense because
the evidence revealed that the altercation between Mr. Thomas and Jason was effectively
No. 23AP-599 23
over and had calmed before Smith fired his weapon at Jason. Therefore, the state posits
that Smith reinitiated and escalated the affray when he fired his weapon. In support, the
state points to Exhibit Z1, a composite video containing splicing of neighbors’ Ring and
Vivent security cameras.5 According to the state, the composite video reveals a five-second
“island of calm” during which Smith could have reflected on whether he needed to fire his
weapon. However, our review of the composite video reveals anguished screaming for help
prior to the sound of gunshots.
{¶ 50} The state also points to various portions of the transcript. But our review of
the transcript reveals differing testimony from the state’s two witnesses who were present
at the scene regarding whether the pause suggested by the state existed, as well as a
different perspective from Smith. On direct examination, Penn testified that her father,
Cordell, intervened when Thomas was approaching Jason with his gun in hand. She stated
that after this intervention, Thomas dropped his gun and then “the whole situation had
been deescalated. Everything was done. When [Mr. Thomas and Jason] fell to the ground
[and] [g]ot back up.” (Tr. Vol. 3 at 567.) She further testified that Mr. Thomas was
collecting the personal items he had dropped when she heard a shot and saw her son-inlaw fall to the ground. On cross-examination, Penn added that, at the time Mr. Thomas
was picking up his items, she picked up Mr. Thomas’s gun. She testified that at that point
“Jason’s gun -- or what appears to be a gun or whatever was in his hands is pointed down,
the shots ring out.” (Tr. Vol. 3 at 584.)
{¶ 51} Charae had a different recollection of the sequence of events. On direct
examination, Charae testified regarding the chaotic situation:
[Charae]: [Mr. Thomas] has got two clips in his hand,
magazines, and he is trying to load them into a rifle. And I say,
What are you doing? What are you doing? What’s going on?
And he says, He didn’t tell you?
And I’m like, Tell me what?
At this point, Jason is on this side. His car has an automatic
start, so what he had done was he had started the car, but when
he realized Mr. Thomas was there, he actually, like -- when you
5 The video footage is taken from a distance and the images are not clear or close-up. The audio reveals
screaming but it is not clear exactly what is being said or who is saying it.
No. 23AP-599 24
have a push-to-start, you put the key -- you start it, and then he
basically, getting out of the car, like, hits the clip out of Robert
Thomas’s hands to get it to fall so he won’t be attacked.
Q: So does he hit the clip when Mr. Thomas is trying to load
that clip into the rifle?
[Charae]: Yes. Yes. He has got the rifle in the air actively trying
to load the magazine.
Q: And that’s when Jason --
[Charae]: He backhands it.
Q: -- backhands this clip?
[Charae]: Yes.
Q: What happens next, looking back in your mind?
[Charae]: I start saying - - I start saying, Help. Help. They are
struggling over the gun. I keep saying, Help. Help.
I run around the car. My mom, I hear her, she starts
screaming. The next thing I know, my grandpa is somehow in
the picture. And it’s like my grandpa is here. Jason is in the
middle. Mr. Thomas is on this side, so it’s kind of like a
sandwich of people. My grandpa is trying to get the gun away
from Mr. Thomas. And my grandpa says, Call 9-1-1.
So I call 9-1-1. And I drop down -- so the action is happening on
this side of the car. I drop down behind the butt of the car, the
passenger side back wheels, and start calling 9-1-1.
There is commotion, and then the next thing I know, it’s pop,
pop, pop, pop, pop. And at one point, I even stood up, and I was
hit with shrapnel and fell down because I thought I had been
shot.
...
I go around the side of the car, and Jason is lying there dead[.]
(Emphasis added.) (Tr. Vol. 3 at 485-86.) Charae’s testimony did not reveal the “island of
calm” the state suggests.
No. 23AP-599 25
{¶ 52} Furthermore, the state’s argument overlooks that Smith was not a part of the
group on the street attempting to deescalate the situation with Mr. Thomas. Rather, he was
viewing the affray from his porch and the evidence demonstrates that he did not have the
same perspective on the course of the altercation as those Smith thought he was defending.
{¶ 53} On direct examination, Smith described what he saw when he stepped onto
his porch to see who was screaming and why:
A: Okay. I see -- I see a woman panicking -- a woman wearing
a gray shirt panicking, which I later found out to [be] Ms. Keys.
...
A: She is screaming. She is panicked. I don’t know what’s going
on. She seemed to be, from what I remember, like, clenching
her abdominal area. I’m thinking maybe -- and she is panicking
at the same time. I was thinking maybe she was hurt or
assaulted. Something to that extent. And that worried me a lot.
Then I see -- the only person I can clearly identify, the only
person I kind of knew out there was Mr. Williams.
...
A: I see Mr. Williams with a rifle down by his side but not
pointed at anyone.
...
A: Okay. I see [Ms. Penn]. And she is panicking. Everybody is
panicking out there. She appears to be holding some kind of
rifle, which . . .
Q: Okay.
A: I’m still -- there is still panicking going on. Still screaming.
And that’s when I hear Mr. Williams -- I hear Mr. Williams say
something like, Put the gun down or drop the gun. And at the
same time, I see Mr. Keys.
Q: When you say Mr. Keys, you later learned it is Mr. [Jason]
Keys --
A: Correct.
...
No. 23AP-599 26
A: Correct. I saw Mr. Keys while Mr. Williams was saying, Drop
the gun. I put two and two together in my head. I saw him
holding an object as if it were a firearm in his left rear passenger
seat -- I mean, his left rear passenger door is open, so it appears
to me that he just retrieved a weapon out of his car, and now he
is trying to raise the firearm. He is holding something.
...
A: After I hear “put the gun down” and I see that, that’s when -
- that’s when I decide to take - - take action.
Q: So you fired your weapon?
A: I did.
Q: Why is it that you fired your weapon at that point in time?
What were you fearing?
A: Well, the panic, multiple different -- multiple different
factors. The panic of everyone. The position. Mr. Keys was
facing north. Everybody else was facing south. And by the way,
. . . Robert Thomas, he was staggered from Mr. Keys’ position.
He was staggered facing west. So he wasn’t directly in front of
him.
Q: Okay.
A: At that point in time, he was unarmed. I didn’t have any
prior knowledge of what happened when I came out. But by
that time, he was already unarmed. So I didn’t see him as a
threat. I wouldn’t see Mr. Sterling as a threat. The only person
I saw as a threat at that time was [Jason] that I was completely
unfamiliar of, never saw him, never saw his face, never spoke
to him, brandishing a firearm, left rear passenger seat open --
left rear passenger door open, appearing to have retrieved or
attempting to retrieve a firearm out of the car.
(Tr. at Vol. 5 at 959-63.)
{¶ 54} On cross-examination, the prosecutor asked Smith, “And you didn’t bother
to even ask a question about what Robert Thomas was doing, not one inquiry?” (Tr. Vol. 5
at 1043.) Smith answered, “There wasn’t much time from just what I was seeing that I felt
-- I genuinely thought that someone was going to be hurt right then and there.” (Tr. Vol. 5
at 1043.) Smith further testified:
No. 23AP-599 27
A. I shoulder -- I shouldered my weapon when I heard “drop
the gun” and still the screaming was continuing. There is still a
lot of commotion. The situation was not deflated -- diffused,
sorry, not deflated. The situation was not diffused by -- from
what I saw, from what I heard from -- you can see it on camera,
the situation doesn’t sound diffused. There is still screaming
going on. You can see in the Ring camera footage. You can hear
it in the Vivent footage that shortly before the shots were fired,
the situation doesn’t sound diffused.
And if the situation was so diffused, why was a woman still
crouched behind the car looking as if she was in fear of her life?
It doesn’t make any sense. The situation didn’t look diffused at
all.
(Tr. Vol. 5 at 1028.) Smith’s testimony does not support what the state suggested should
have been an “island of calm.”
{¶ 55} Accordingly, I am not persuaded by the state’s argument that Smith was not
entitled to act in defense of Charae, Penn, Cordell, and Mr. Thomas because Smith
reinitiated or escalated the fight.
{¶ 56} Having rejected the state’s four arguments, I would find that Smith was
legally entitled to assert the defense-of-another affirmative defense. But the inquiry as to
whether Smith suffered prejudice as a result of the claimed error does not end here.
II. Review of the entire record reveals Smith has not demonstrated a
reasonable probability that the error resulted in prejudice to him
{¶ 57} The standard for the substantial rights or prejudice prong of the plain error
analysis has been stated in varying ways over the years, but this court has settled that the
“sounder legal standard” is as follows:
an accused seeking to show that an obvious error affected his
or her substantial rights (and thereby, the outcome of the
criminal proceeding) must “demonstrate a reasonable
probability that the error resulted in prejudice,” such that there
is a “probability of a different result [that] is sufficient to
undermine confidence in the outcome of the proceeding.”
(Emphasis in original.) State v. Taylor-Hollingsworth, 2020-Ohio-278, ¶ 12 (10th Dist.),
quoting State v. Myers,
2018-Ohio-1903, ¶ 130. The United States Supreme Court has held
that “a defendant[-appellant] must thus satisfy the judgment of the reviewing court,
informed by the entire record, that the probability of a different result is ‘sufficient to
No. 23AP-599 28
undermine confidence in the outcome’ of the proceeding.” United States v. Dominguez
Benitez,
542 U.S. 74, 83 (2004), quoting Strickland v. Washington,
466 U.S. 668, 694
(1984).6 Therefore, informed by the entire record regarding the defense-of-another
affirmative defense, I consider whether there is a reasonable probability that the omission
of the instruction on how to apply the defense-of-another affirmative defense resulted in
prejudice such that the probability of a different result is sufficient to undermine confidence
in the outcome of the proceeding.
{¶ 58} By asserting the affirmative defense, Smith did not deny the existence of the
act and, therefore, it is not necessary to consider whether the elements of the offense of
murder were proven. Accordingly, I will focus on the evidence related to the elements of
the defense of another and, in particular, the second element regarding whether it was
reasonable for Smith to believe Charae, Penn, Cordell, and Mr. Thomas were in imminent
or immediate danger of death or great bodily harm.
{¶ 59} With regards to the second element—whether it was reasonable for Smith to
believe Charae, Penn, Cordell, and Mr. Thomas were in imminent or immediate danger of
death or great bodily harm, the instructions addressed the second and third elements
together and stated:
6 In Taylor-Hollingsworth, we traced the development of the plain error doctrine under Crim.R. 52(B) and
concluded that the standard set forth in State v. Long, 53 Ohio St.2d 91, 96-97 (1978), was no longer good law.
In Long, the Supreme Court of Ohio considered whether a particular jury instruction determined to be
erroneous constituted plain error and in so doing considered whether the appellant had shown that “but for
the error, the outcome of the trial clearly would have been otherwise.” (Emphasis added.) Taylor-Hollingsworth at ¶ 9. We observed in Taylor-Hollingsworth that the rule against inquiry into jury verdicts
and the inherent difficulty of proving a hypothetical make it virtually impossible to prove that a jury would
“clearly” have reached a different decision “but for the error.”
Id., citing
Long at 96-97. We further observed
that despite courts continuing to cite the Long precedent, the Supreme Court of Ohio, in State v. Rogers, 2015-
Ohio-2459, ¶ 22, adopted the language of the United States Supreme Court in Dominguez Benitez, “in order
to clarify that an accused need only show a reasonable probability (rather than a clear proof) that but for an
error, the outcome of the trial would have been otherwise.”
Taylor-Hollingsworth at ¶ 10. We also noted that,
two years after Rogers in State v. Thomas,
2017-Ohio-8011, the Supreme Court of Ohio again noted the
Dominguez Benitez language and emphasized: “Even if the error is obvious, . . . the accused is ‘required to
demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims.’ ” (Emphasis in original.)
Taylor-Hollingsworth at ¶ 10,
quoting
Thomas at ¶ 33. Recently, the Supreme Court of Ohio repeated the same standard as that adopted in
Taylor-Hollingsworth and informed by Rogers and Thomas in State v. Drain,
2022-Ohio-3697, ¶ 52, and
State v. Brunson,
2022-Ohio-4299, ¶ 25. Accordingly, in considering whether prejudice resulted in this case,
I am mindful that Smith is not required to show that the outcome of the trial clearly would have been
otherwise, but rather need only show that there is a reasonable probability that the error resulted in
prejudice—such that there is a probability of a different result that is sufficient to undermine confidence in the
outcome.
No. 23AP-599 29
Two and three, Reasonable Grounds and Honest Belief: These
elements of self-defense are a combined subjective and
objective test. You must first consider the defendant’s situation
objectively, that is, whether considering all the defendant’s
particular characteristics, knowledge or lack of knowledge,
circumstances, history, and conditions at the time of the attack,
from an objective standpoint, whether he reasonably believed
the people he claimed to have defended were in imminent
danger. Then if the objective standard is met, you must then
subjectively consider if this particular defendant had an honest
belief that the people were in imminent danger. The
testimony of Dr. Delaney Smith was admitted for the
limited consideration regarding the defendant’s particular
characteristics, knowledge or lack of knowledge,
circumstances, history and conditions at the time of the attack.
Dr. Delaney Smith’s testimony cannot be considered for any
other purpose.
Another component contained within these second and third
elements is the defendant’s bona fide belief that the use of force
was the only means of escape. Part of this entails showing the
defendant used only the force that is reasonably necessary to
repel the attack. You must consider the conduct of Jason Keys
and determine if his acts and words caused the defendant to
reasonably and honestly believe that the people he claimed to
have defended were about to be killed or to receive great bodily
harm.
(Tr. Vol. 5 at 1139-40.)
{¶ 60} Smith testified as follows. His sisters told him “[t]here are people with guns
outside,” and he heard “loud disturbing scream[ing].” (Tr. Vol. 5 at 950, 952.) He did not
know who it was and thought it could have been his mom. Smith went to his room and
grabbed his rifle. He looked for his phone to call 911 but could not find it. When he went
back upstairs, he continued to hear screaming which made him think that something bad
was happening outside and someone was in danger. He felt “pretty panicked.” (Tr. Vol. 5
at 957.) When he opened the door and looked out, he saw one of the two females screaming
and panicked. He said he did not know what was going on. Smith stated, “She seemed to
be, from what I remember, like, clenching her abdominal area. I’m thinking maybe - - and
she is panicking at the same time. I was thinking maybe she was hurt or assaulted.
Something to that extent. And that worried me a lot.” (Tr. Vol. 5 at 959-60.) Smith testified
that he saw Cordell “with a rifle down by his side but not pointed at anyone.” (Tr. Vol. 5 at
No. 23AP-599 30
960.) He saw Penn “[a]nd she is panicking. Everybody is panicking out there. She appears
to be holding some kind of rifle[.]” (Tr. Vol. 5 at 960-61.) Smith heard Cordell say
something like, “[p]ut the gun down or drop the gun,” and that is when he saw Jason.
(Tr. Vol. 5 at 961.) Smith testified that he saw Jason “while Mr. Williams was saying, Drop
the gun. I put two and two together in my head. I saw him holding an object as if it were a
firearm in his left rear passenger seat -- I mean, his left rear passenger door is open, so it
appears to me that he just retrieved a weapon out of his car, and now he is trying to raise
the firearm. He is holding something. . . . I do believe there was a firearm.” (Tr. Vol. 5 at
961-62.) Smith testified that, after he heard “put the gun down,” he decided to take action
and he fired his weapon. (Tr. Vol. 5 at 962.) He described Jason in that moment as follows:
“The only person I saw as a threat at that time was the person that I was completely
unfamiliar of, never saw him, never saw his face, never spoke to him, brandishing a firearm,
left rear passenger seat open -- left rear passenger door open, appearing to have retrieved
or attempting to retrieve a firearm out of the car.” (Tr. Vol. 5 at 963.) “To me, it looked like
there was possibly a standoff with multiple firearms.7. . . And they were trying to stop this
man from hurting somebody, that’s what I thought.” (Emphasis added.) (Tr. Vol. 5 at
963-64.) When asked if he believed that the people were in imminent danger of being shot,
killed, seriously injured, Smith replied “correct” “[g]iven the fact that there were multiple
firearms outside . . . [a]nd the panicking[.]” (Tr. Vol. 5 at 964.) He stated:
A. Well, I didn’t know who [Jason] was, but in my mind, I’m
shooting a man who is brandishing a firearm, he is seen as a
threat, and there are women screaming, someone is saying,
Drop the gun. I am unfamiliar with this man, and he seemed
like a threat. It appeared to me that he retrieved a firearm out
of his car, left rear passenger seat. And that’s -- hearing the
“drop the gun” and multiple other things with the screaming
7 There were several guns recovered at the scene. One state’s exhibit depicted a Norinco “SKS” rifle, which
was brought to the scene by Mr. Thomas to accost Jason. This is the gun that Jason and Cordell disarmed Mr.
Thomas of prior to Jason being shot. It was located to the side of and close to the front driver’s side of the car.
Another state’s exhibit depicted a “pump action” Marlin model .22 caliber which was brought to the scene by
Penn at the direction of Cordell. It was located at the upper part of the driveway close to the Williams’ home.
Another state’s exhibit depicted two 30-round magazines flipped and taped together, essentially a 60-round
magazine, for the SKS rifle brought to the scene by Mr. Thomas. It was located near the rear driver’s side door
and rear tire of the car. The taped magazine is in the form of a crescent with two butts protruding, one at each
end of the concave of the crescent. It appears to be slightly larger than another gun, a “small caliber handgun,”
a KelTec .380 pistol which belonged to Jason that was located near and just behind the rear driver’s side tire
close to the magazine. The photos also depicted a cell phone, Mr. Thomas’s driver’s license, a pair of
sunglasses, and a set of Volvo keys on the ground.
No. 23AP-599 31
and all of that, in my mind, I thought right then and there that
Mr. Keys was a threat.
(Tr. Vol. 5 at 989-90.)
{¶ 61} On cross-examination, Smith testified that it was not his specific purpose to
kill Jason but that “[i]t was -- my purpose was to stop who I saw as an imminent threat to
other people and that’s it. Not specifically to kill, but just to stop him.” (Tr. Vol. 5 at 987-
88.) Smith’s testimony was largely consistent with the interview conducted by Detective
Lemmon shortly after the shooting.
{¶ 62} Based on Smith’s testimony alone, I cannot say with regard to the second
element that there is a reasonable probability that omission of the instruction resulted in
prejudice such that the probability of a different result is sufficient to undermine confidence
in the proceeding. The jury heard Smith testify that he saw Jason retrieve a weapon out of
his car, that he thought Jason was trying to raise the firearm and, at that time, based on his
belief that Jason was a threat, he decided to take action and fire his weapon. Smith also
testified, however, that even though both Penn and Cordell had firearms, Penn was
screaming and Cordell’s weapon was pointed down. He specifically testified that “[t]o me,
it looked like there was possibly a standoff with multiple firearms,” and that “they were
trying to stop this man from hurting somebody, that’s what I thought.” (Emphasis added.)
(Tr. Vol. 5 at 963-64.) The evidence also revealed that Charae was crouched behind the car
on the opposite side from Jason. Considering Smith’s own testimony, I cannot say that
there is a reasonable probability the jury would have found that it was objectively
reasonable for him to believe that Charae, Penn, Cordell, and Mr. Thomas were in
imminent or immediate danger of death or great bodily harm—since two of them also had
firearms. That Cordell’s weapon was pointed down leads to a reasonable conclusion that
Cordell was not feeling threatened. Furthermore, in Smith’s mind, “they”—meaning Penn
and Cordell—were trying to stop Jason from hurting someone—and therefore it would not
be reasonable to conclude his intervention was needed. Furthermore, Charae was taking
cover behind the other side of the car and would not have been in what Smith thought would
be Jason’s line of fire. Nevertheless, in addition to Smith’s testimony, I will also consider
the evidence regarding his particular characteristics, knowledge or lack of knowledge,
circumstances, history, and conditions at the time of the attack.
No. 23AP-599 32
{¶ 63} The trial judge permitted the jury to consider the testimony and the report of
Dr. Delaney for the limited consideration regarding the defendant’s particular
characteristics, knowledge or lack of knowledge, circumstances, history, and conditions at
the time of the attack. Dr. Delaney reviewed Smith’s medical records from the Veterans
Administration and from Mount Carmel Emergency Room. She conducted a mental status
examination but did not do any other testing.8 Dr. Delaney considered two separate
occasions when Smith was assaulted—once in the military, which lead to the formal
diagnosis of traumatic brain injury (“TBI”), and once prior to joining the military. In the
military assault, Smith was choked and his skull was fractured. In the assault prior to the
military, Smith was walking in the evening when he was stomped on and continuously
punched to the point of losing consciousness. Dr. Delaney described post-traumatic stress
disorder (“PTSD”) as generally having three components: first, PTSD can cause a person to
reexperience past trauma in the form of nightmares or flashbacks; second, PTSD can cause
a person to have negative outlooks such as the world is an unsafe place for them; and, third,
PTSD can cause a person to have an “increased hypervigilance, so are they very easily
startled, are they watching everything around them to make sure that they are safe, kind of
always on the lookout for some kind of danger, feeling what happened to them before may
happen again.” (Emphasis added.) (Tr. Vol. 4 at 805-06.) Dr. Delaney testified that Smith
specifically was experiencing symptoms of PTSD including nightmares, flashbacks,
8 Smith’s sixth assignment of error claims he was denied effective assistance of counsel for his trial counsel’s
failure to adequately prepare Dr. Delaney for testimony. Specifically, he claims trial counsel was ineffective
for failing to apprise Dr. Delaney of the existence of key case materials such as Detective Lemmon’s recorded
interview of Smith and the composite video from neighbors’ security cameras, which Smith described as
indispensable to proper expert review, or to instruct her to personally conduct testing for TBI and PTSD to
reconfirm Smith’s psychiatric diagnosis. Smith argues that his trial counsel’s ineffectiveness resulted in the
jury devaluing her testimony, finding it less credible. He also argues that had she conducted testing and
reviewed the recorded evidence, she would have been better able to explain how a sufferer of PTSD and TBI
would be prone to react when confronted with the chaotic scene on the street in front of his house. Specifically,
Smith suggests that Dr. Delaney “could have credibly explained how such a scene would trigger the enhanced
fight-or-flight response, hypersensitivity to danger, and overwhelming need to act immediately characteristic
to PTSD and TBI.” (Smith’s Brief at 66.) Dr. Delaney testified that although she was not aware that the
recorded evidence existed, she would have reviewed it if she was aware and, nevertheless, she felt there was
sufficient information without the recorded evidence to make a diagnosis and render an opinion. Without
opining as to the sixth assignment of error, for purposes of the analysis above, I will accept Dr. Delaney’s
testimony as credible. Furthermore, the state filed a conditional cross-appeal asserting an assignment of
error that the trial court abused its discretion in admitting Dr. Delaney’s testimony and report because Smith
failed to demonstrate the requirements set forth in Evid.R. 702(A). Because I conclude the trial court’s omitted
jury instruction that is the subject of Smith’s first and second assignments of error did not result in prejudice
and therefore would not reverse the judgment of the trial court, it is not necessary to address the state’s
assignment of error relating to Dr. Delaney’s testimony and report.
No. 23AP-599 33
heightened startle response, feelings of danger around every corner, avoidance of things
that reminded him of the assaults, difficulty trusting the world, as well as physical
symptoms such as heart pounding and tightness in his chest when he saw things that
reminded him of the assaults. Dr. Delaney described TBI as generally having symptoms
such as difficulty with judgment, impaired memory and concentration, or problems with
walking or coordination if it affects the motor cortex. Dr. Delaney testified that Smith
specifically was experiencing symptoms of TBI including headaches, ringing in his ears,
blurry vision, as well as irritability and feeling more impulsive. Dr. Delaney further testified
that PTSD and TBI together can affect the decision-making process—the PTSD causes a
person to feel the world is unsafe, and a trigger can cause an increase in heart rate and
breathing, and an adrenaline surge. PTSD coupled with TBI, causes a person to experience
impulsivity—this creates a situation where someone experiencing both may be “primed to
always react very quickly and feel like there is danger, and then having the impulsivity with
the brain injury on top of it . . . can impact the way everything unfolds.” (Tr. Vol. 4 at 811-
12.) She opined to a reasonable degree of medical certainty that PTSD and TBI contributed
to Smith’s decision-making process at the time that the shooting occurred and that it
“inform[ed] his ability to take the time to slowly react, to slowly, you know, observe the
situation. And instead, it’s going to be this very heightened, adrenaline fueled, I have got
to act now because people are in danger . . . I have to make a decision at this moment,
impulsivity and hyperreactivity.” (Tr. Vol. 4 at 813.)
{¶ 64} Dr. Delaney opined that due to his PTSD and TBI, when Smith shot Jason, he
acted impulsively because someone was in danger. However, in summarizing the general
symptoms of PTSD, Dr. Delaney described PTSD symptoms in general—that a person
suffering from PTSD has hypervigilance regarding their own safety. Dr. Delaney testified
that for a person suffering from PTSD “the world is an unsafe place for them” and “are they
watching everything around them to make sure that they are safe, kind of always on the
lookout for some kind of danger, feeling that what happened to them before may happen
again.” (Emphasis added.) (Tr. Vol. 4 at 805-06.) Smith provided consistent testimony
that he perceived a threat to Charae, Penn, Cordell, and Mr. Thomas, but not that he
perceived a threat to himself. Furthermore, the testimony revealed he was standing on his
porch or doorway when he shot Jason, and he was not in the street in the middle of the
No. 23AP-599 34
affray.9 Although, initially, he did not know if his mom was in danger, his testimony
revealed that he learned that she was not involved; and he had already protected his siblings
by telling them to go to the basement.
{¶ 65} Accordingly, I would find the error of the omitted jury instruction did not
affect Smith’s substantial rights because, if the omitted instruction had been given, the
entire record does not demonstrate, as to the second element of the defense of another, a
reasonable probability that the error resulted in prejudice—such that there is a probability
of a different result that is sufficient to undermine confidence in the outcome of the
proceeding. Stated another way, I find that the jury could have reasonably concluded that
the state proved beyond a reasonable doubt, with respect to the second element of defense
of another, that “the defendant did not have reasonable grounds to believe that the people
he claimed to have defended were in imminent or immediate danger of death or great bodily
harm.” (Tr. Vol. 5 at 1137-38.)
{¶ 66} Based on the foregoing, I concur in part and dissent in part from the majority.
I would affirm the judgment of the trial court.
_______________________
9 Even if Dr. Delaney had reviewed the recording of Dr. Lemmon’s interview and the composite video of
neighbors’ security cameras, presumably her testimony regarding the general symptoms of PTSD would not
change; perhaps only her testimony regarding PTSD symptoms that Smith was specifically experiencing at
the time of the shooting.
