[Cite as State v. Smith, 2023-Ohio-1296.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111593

v. :

KEVIN SMITH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 20, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-652459-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Gregory Mussman and Poula Hanna, 

Assistant Prosecuting Attorneys, for appellee. 

Robert A. Dixon, for appellant. 

MARY J. BOYLE, J.:

Defendant-appellant, Kevin Smith (“Smith”), appeals his murder and 

felonious assault convictions. Smith contends the trial court improperly charged the 

jury regarding self-defense and failed to provide a verdict form regarding self-
defense; there was insufficient evidence to sustain the state’s burden to disprove 

self-defense; his convictions are against the manifest weight of the evidence; and 

trial counsel was ineffective for failing to object to the jury instructions and verdict 

forms. For the reasons set forth below, we affirm.

I. Facts and Procedural History

This appeal stems from the fatal shooting of Jason Pulley (“Pulley”),

which took place on the evening of May 7, 2020, in the HP gas station parking lot 

located at 13900 Kinsman Avenue in Cleveland. As a result of this shooting, Smith 

was charged in a four-count indictment. Count 1 charged Smith with aggravated 

murder in violation of R.C. 2903.01(A).

1 Count 2 charged him with murder in 

violation of R.C. 2903.02(B).

2 Count 3 charged Smith with felonious assault, a 

felony of the second degree, in violation of R.C. 2903.11.

3 Each of Counts 1-3 carried

one- and three-year firearm specifications. Count 4 charged Smith with having 

weapons while under disability (“HWWUD”) in violation of R.C. 2923.13(A)(3).

4

1 “No person shall purposefully, and with prior calculation and design, cause the 

death of another * * *.”

2 “No personal shall cause the death of another as a proximate result of the 

offender’s committing or attempting to commit an offense of violence that is a felony of 

the first or second degree * * *.”

3 “No person shall knowingly * * * cause serious physical harm to another * * *.”

4 “[N]o person shall knowingly acquire, have, carry, or use any firearm * * * if * * * 

the person is under indictment for or has been convicted of any felony offense involving 

the illegal possession, use, sale, administration, distribution, or trafficking in any drug of 

abuse * * *.”
The matter proceeded to a jury trial in March 2022.5 Throughout the 

trial, Smith did not dispute that he shot and killed Pulley. Rather, Smith claimed he 

acted in self-defense. The following relevant evidence was adduced at trial.

Pulley’s girlfriend, Jameana Holly (“Holly”), testified that Pulley ran 

a landscaping company and was “a wonderful person”:

He was very giving, very compassionate. He loved his family. He — up 

until his death, he took care of his mother. He was very oriented. He 

loved his kids. He loved the community. He bought a lot of the less 

fortunate kids bikes and shoes and stuff of that nature.

(Mar. 7, 2022, tr. 251.) Holly further testified that Pulley was licensed to carry a 

firearm, had multiple guns, and regularly carried a gun.

On the night of the shooting, Pulley was at Holly’s house, which is 

located about a minute away from the gas station where the incident occurred. 

Pulley and Holly ordered dinner and planned to stay in for the night. Pulley’s 

business cell phone kept ringing. After about four or five calls, Pulley answered the 

phone. Pulley became “agitated,” “animated,” and “irritated,” which Holly described 

was “not his normal” behavior. Pulley was gesturing and yelling about how an 

individual named “Kev” needed to worry about himself. Holly did not know who 

“Kev” was. Pulley got dressed and sat in the car in Holly’s driveway for about three 

minutes before he left. Holly did not know where he went.

The lead investigator, Cleveland Police Detective David Shapiro 

(“Lead Detective”), testified that the last phone number that called Pulley and the 

5 Count 4 was tried before the bench.
last phone number that Pulley called belonged to a person named Ashley Rox

(“Rox”). The state made efforts to have Rox testify at trial, however, she was 

“nowhere to be found.” The Lead Detective testified that he learned that Rox’s 

phone number was associated with Smith through another agency.

Thomas Ciula (“Audiovisual Forensics Expert”), head of the 

Cleveland Division of Police’s forensic video laboratory for the homicide unit, 

presented surveillance video composites from the HP gas station and Mount 

Pleasant, a location across the street. The videos were played for the jury and

showed Smith arriving at the crowded gas station, waiting for a spot to open, pulling 

up to a gas pump despite the gas tank being on the opposite side of his vehicle,

continuing to wait inside, and talking briefly to another patron. About 13 minutes 

after Smith’s arrival, Smith exited his vehicle as Pulley pulled into the back of HP’s 

parking lot behind the gas pumps.

Smith waved as he walked toward Pulley’s vehicle. Smith was holding 

objects in each hand. On cross-examination, the Audiovisual Forensics Expert

agreed that the objects appeared to be consistent with a drink and possibly a cell 

phone. An unidentified individual also approached Pulley’s vehicle but walked away

shortly after. 

The events that follow were not captured on video due to the location 

of the cameras. However, four flashes can be seen on the Mount Pleasant 

surveillance footage before Pulley is observed falling to the ground. The Lead 

Detective testified that the flashes in the video were consistent with muzzle flashes. 
The state’s witnesses acknowledged that the footage does not reveal whether Pulley 

or Smith was “the aggressor.” 

Smith jogged back to his vehicle with a different object in his right 

hand. The Audiovisual Forensics Expert testified it was a “right angled object”

consistent with a firearm. After getting in his car, Smith quickly drove away from 

the scene. That same evening, Smith’s vehicle was found crashed into a tree with 

heavy damage about a block and half away from the gas station on Melzer Road. The 

Lead Detective testified that Smith fled both the scene of the shooting and the scene 

of the crash.

Cleveland Police Officer Alexander Cole (“Officer Cole”) responded to 

a call regarding the motor vehicle accident on Melzer Road. Officer Cole observed a 

silver and black handgun located on the passenger floorboard of Smith’s vehicle at 

the scene of the crash. Cleveland Police Detective Troy Edge (“Detective Edge”)

processed Smith’s vehicle after it was towed from the accident scene. Detective Edge 

collected a black and silver Davis .380 caliber semiautomatic handgun from the 

vehicle along with other items and swabs from the interior of the car to test for DNA. 

According to Lisa Moore (“DNA Analyst”), a DNA analyst for the Cuyahoga County 

Medical Examiner’s Regional Forensic Science Laboratory, Smith’s DNA was 

matched to swabs collected from the grip and trigger of the Davis .380 caliber 

handgun.

Edward Lattyak (“Firearms and Ballistics Expert”), a firearms section 

supervisor at the Cuyahoga County Medical Examiner’s Crime Laboratory, testified 
that the Davis .380 caliber handgun was operable but in “very bad condition.” “It

came in * * * with a large crack on the slide running across the top of the slide and 

so immediately we determined that this gun would be unsafe to fire in its present 

condition without taking some precautions.” (Mar. 9, 2022, tr. 430-431.) To obtain 

test fired bullets for comparison, the Firearms and Ballistics Expert shot the .380 

caliber gun with a different slide as well as with the original slide taped.

Cleveland Police Detective Demetrius Madison (“Detective 

Madison”) arrived at HP within a minute of the shooting. He was already on his way 

to the gas station for another call when he heard the gunshots. Detective Madison

rendered first aid to Pulley before EMS arrived and transported him to the hospital. 

Detective Madison also located a black Smith & Wesson .40 caliber handgun 

approximately five feet away from Pulley’s body.

Detective Todd Clemens documented, collected, and preserved the 

Smith & Wesson .40 caliber handgun, amongst other items, from the scene of the 

shooting. The Smith & Wesson .40 caliber handgun was loaded with a bullet in the 

chamber of the gun and its safety off. The Lead Detective testified Pulley had the 

legal right to carry a gun. The Lead Detective also testified, “We did not recover any 

evidence related to that 40 caliber, meaning there were no spent casing for the 40 

caliber.” (Mar. 9, 2022, tr. 524.)

The DNA Analyst testified that Pulley’s DNA was matched to swabs 

collected from the grip, trigger, and magazine of the Smith & Wesson .40 caliber gun

while Smith’s DNA was not detected. Four .380 caliber cartridge casings were also 
collected from the HP gas station. According to the “Firearms and Ballistics Expert”

results were inconclusive as to whether the casings were discharged by Smith’s Davis 

.380 caliber handgun.

Cleveland Police Detective Thelemon Powell (“Detective Powell”) 

testified about the processing of Pulley’s vehicle. Some of the evidence collected 

included an unloaded assault rifle magazine and a box containing 5.56 caliber live 

rounds. An assault rifle was not present and the rounds would not fit inside the 

Smith & Wesson .40 caliber gun located by Pulley’s body. The unloaded magazine 

and box of live rounds were legal because Pulley was a concealed carry permit 

holder. Packaged bags of marijuana that could be sold were also located in Pulley’s 

vehicle. A gray face mask with a defect or hole was collected from the driver’s side

door. One spent casing was located inside the mask. There was no blood in vehicle. 

Detective Powell also testified that the area was very dangerous and 

violent; it was not uncommon for people to carry guns. The HP gas station was not 

just a place where people filled up their gas tanks; it was a place where people would 

hang out, congregate, and meet. Drugs were sometimes sold at the gas station and 

several homicides had occurred at HP within the last few years. 

Dr. Joseph Felo (“Dr. Felo”), a forensic pathologist and the chief 

deputy medical examiner for Cuyahoga County, testified about Pulley’s autopsy

findings. Dr. Felo’s Report of Autopsy, marked as State’s exhibit No. 256, indicated 

that Pulley was 39 years old, 71 inches tall, and weighed 308 pounds at the time of 

his death. Pulley was shot twice in the left chest, with the bullet travelling 
downward; once in his left upper arm, with the bullet travelling upward and

breaking his upper arm bones, humerus, and front portion of his shoulder blade; 

and once in his back between his shoulder blades just left of his thoracic spine, 

severing his spinal cord and causing immediate paralysis of his legs. 

Curtis Jones (“Trace Evidence Expert”), supervisor of the Cuyahoga 

County Medical Examiner’s trace evidence unit, testified that one of the shots to 

Pulley’s chest was fired from an intermediate range between a foot to four or five 

feet. The shot to Pulley’s left upper arm was fired from a close proximity, meaning 

less than a foot away but without contact. The shot to his back was determined to 

be a contact wound by both Dr. Felo and the Trace Evidence Expert. The Lead 

Detective testified the shot to Pulley’s back was a debilitating and it was unlikely 

Pulley was facing the shooter when he received this contact wound to the middle of 

his back.

Dr. Felo further testified that Pulley’s wounds would not have caused 

much bleeding or blood spatter. The order of the shots and the position of Pulley’s 

body at the time of their infliction were indeterminable. Three bullets were collected 

from Pulley’s body. The Firearms and Ballistics Expert testified that two of the 

bullets were identified as having been fired by Smith’s Davis .380 caliber handgun 

while the other was damaged and inconclusive.

Dr. Felo also testified that Pulley was positive for tobacco products; a 

break-down product of cocaine, indicating historical use; and active and historical 

cannabinoids, indicating Pulley was both previously and recently exposed to 
marijuana. Pulley’s cause of death was multiple gunshot wounds, and the manner of 

death was homicide. 

The DNA Analyst testified that Smith’s DNA was not located 

underneath Pulley’s fingernails or on Pulley’s hands, palms, or knuckles. The Trace 

Evidence Expert testified that gunshot primer residue was identified on Pulley’s 

hands. However, it is unknown whether the residue was deposited from Pulley

discharging a firearm, being in close proximity to the discharge of a firearm, or being 

in contact with an object that had gunshot primer residue on it. No trace metal was 

detected on Pulley’s hands; however, a negative result is not a conclusive finding

that a metal object was not handled.

After the state rested, the trial court considered Smith’s arguments 

regarding his claim of self-defense and found insufficient evidence of self-defense 

had been presented thus far for an instruction to be given to the jury. Smith moved 

for a Crim.R. 29 acquittal on Counts 1 through 3. The trial court denied the motion 

as to each count. In light of the court’s ruling, Smith took the stand. He was the sole 

witness on his behalf.

Smith testified that he and Pulley knew each other; they grew up in 

the same community together. Smith further testified that he dated Rox on and off 

for about seven or eight years. He stated: 

[STATE]: So it didn’t make you very happy to hear that Jason Pulley 

was sleeping with Ashlee Rox, did it?

[SMITH]: Don’t bother me. I know a lot of people sleep with Ashlee.
[STATE]: Okay. So you knew that they were in a relationship.

[SMITH]: I didn’t know that.

[STATE]: You didn’t?

[SMITH]: No, I didn’t.

[STATE]: But you knew Jason Pulley.

[SMITH]: I knew Jason Pulley.

(Mar. 10, 2022, tr. 605.) Smith further testified:

[STATE]: Underneath your neck there, I mean, you have Ashlee’s 

name tattooed on your neck, correct?

[SMITH]: Absolutely. I got — I got a lot of tattoo names, Ashlee, 

Paradise, Tamara, Valerie.

[STATE]: So the guy that was sleeping with your girl you were just 

cool with?

[SMITH]: I mean, how did I know that he was sleeping with her? I 

didn’t know.

(Mar. 10, 2022, tr. 608.)

Smith said he talked to Pulley earlier because he wanted to buy some 

marijuana from Pulley. Smith testified: 

[STATE]: So, were you using Ashlee’s phone to bring him in here? 

Is that what the call came —

[SMITH]: No.

[STATE]: Why did Ashlee call him, do you know?

[SMITH]: I don’t — I don’t know.

[STATE]: So how did you call him? What number were you using?
[SMITH]: I don’t have the number in front of me, sir. I don’t 

remember the numbers.

[STATE]: Okay. So you don’t have the number that you used to call 

—

* * * 

[STATE]: So, I mean, just like you said, this was an important time. 

I’m trying to get to the details here. You don’t remember 

what number you had to call Jason Pulley?

[SMITH]: I can’t — I can’t remember the number.

(Mar. 10, 2022, tr. 607.) Smith further testified:

Yeah. I had talked to him earlier, but he was taking so long, that I had 

something to do, so I had left and grabbed some — grabbed some 

clothes that I needed. You know, I had left, grabbed some clothes.

(Mar. 10, 2022, tr. 581.) Smith said that he went to the HP gas station “to see if I 

seen Mr. Pulley so that I can buy some weed.” (Mar. 10, 2022, tr. 583.) When he 

arrived at the gas station, Smith waited for a pump to open and pulled in. He asked 

another gas station patron about marijuana because Pulley was not there. Smith 

testified:

[STATE]: Okay. So Jason Pulley decides to stop what he’s doing to come 

out to sell you some — a little bit of weed?

[SMITH]: Exactly what the — what the — what the lady — the State 

witness have said earlier, that he got up, he left the house and 

he came, said that he was meeting Kev.

[STATE]: You weren’t trying to squash any beef?

[SMITH]: It wasn’t a beef to squash, that I knew. We didn’t have any type 

of problem.

(Mar. 10, 2022, tr. 607-608.)
When Pulley arrived, Smith waved to Pulley and walked to the back 

of the gas station where Pulley had parked. Smith testified, “It wasn’t like I was 

trying to sneak up.” (Mar. 10, 2022, tr. 586.) When asked whether he thought there 

was a problem between him and Pulley, Smith testified: “For what? You know, I —

you know that you are here to sell me the weed. Like, what could the problem be?” 

(Mar. 10, 2022, tr. 586.) He was “not at all [angry that night before meeting with 

Mr. Pulley]” and had “[n]o intention at all of fighting him” and “[n]o intentions at 

all to kill him.” (Mar. 10, 2022, tr. 584.) He further testified, “I had no idea that me 

and this man had any problem. No idea.” (Mar. 10, 2022, tr. 600.)

Smith said that the Davis .380 caliber handgun he was carrying was 

cracked the night of the shooting. Smith was not concerned about it being unsafe to 

fire because “I wasn’t — never really planning on ever really using the gun.” (Mar. 

10, 2022, tr. 585.) The Davis .380 caliber handgun was in Smith’s waistband when 

he walked toward Pulley. Smith testified a water bottle was in his left hand and a 

cell phone was in his right.

Smith, with his attorney, visually demonstrated what happened when 

Smith arrived at Pulley’s vehicle. Smith claimed that Pulley pulled out a gun, cocked 

it, and put the gun to his face. Smith also claimed that Pulley grabbed and slung him 

towards the vehicle so hard that the water bottle and cell phone fell out of his hands. 

Smith testified that Pulley cursed at him and said, “Get your ass here * * * before I 

kill you.” (Mar. 10, 2022, tr. 587-588.) Smith testified: 
At that point I knew nothing what he was talking about. I had no clue 

about nothing, what he was saying or what was going on.

* * * 

As he got me, I — I keep replying, “Brother, what did I do? What 

happened?” That was — that was — when he — when he grabbed me, 

he yanked me so hard that the cup and the cell phone * * * fell out of 

my hand.

(Mar. 10, 2022, tr. 588.)

Smith claimed that Pulley pointed the gun at the unidentified

individual that approached them and told him to “[g]et out here before I shoot you, 

too.” (Mar. 10, 2022, tr. 588-589.) While Pulley was cursing and yelling at this 

unknown individual, Pulley held the gun towards Smith. Smith reached for his own 

gun, pulled it from his waistband, and shot Pulley. Smith explained:

[W]hen he bring his and back up, he bring his hand back down and 

goes to raise it up, but as he goes to raise it up, I had the gun in my 

hand. 

* * * 

And I — I was so scared, he — he — so he about to kill me, so I — I shot 

him.

* * * 

Shot, boom. One shot. I can’t remember all the shots. But he grabbed 

me. When he grabbed me, he pushed me up against the truck.

* * *

And as he pushed me up against the truck he had his arm like this on 

my neck (indicating.)

* * *
I shot again. I reached behind and shot again. 

* * *

He fell back.

(Mar. 10, 2022, tr. 590-591.) 

On cross-examination, Smith admitted he was not legally allowed to 

carry a firearm because he was a convicted felon. He again reenacted the events that 

took place behind Pulley’s vehicle:

[STATE]: So you come out. I’ll be you. You said Mr. Pulley comes 

up, he racks it, and then puts the gun at you?

[SMITH]: He puts the gun to my face.

[STATE]: So to your face right here?

[SMITH]: Standing in front of me. Put the gun to my face, yes, sir.

[STATE]: Okay. So then you said you start pop, pop, pop, and 

you’re stepping back. I saw you do that.

[SMITH]: You say —

[STATE]: How do you — how do you start firing? So you said the 

first shot.

[SMITH]: Yes.

[STATE]: And then you don’t remember the rest?

[SMITH]: Like I explained to you, when he touched — when his 

hand went into the doorway, the door was open, his hand 

went into his doorway —

* * *

[SMITH]: The car door was opened. As his hand come — hits the 

doorway, he push back toward — he push me back up 
against the car. He was outside — he was, like, outward 

towards the car, and he had me placed up towards the car 

like this (indicating).

[STATE]: So he hemmed you up on the car?

[SMITH]: Hemmed me up on the car.

[STATE]: Okay. So you’re right here. Mr. Hanna is you, hemmed 

up on this car right here.

[SMITH]: Hemmed up on his car.

[STATE]: Right hand Mr. Pulley is hemming you up?

[SMITH]: His left.

[STATE]: Left?

[SMITH]: Absolutely.

[STATE]: Right here.

[SMITH]: Absolutely.

[STATE]: All right. So walk us through. What do you do?

[SMITH]: Okay. He — he — as he — my hand is holding that right 

hand.

[STATE]: Okay.

[SMITH]: My left hand — is that left hand? Holding his right —

holding that right hand. Come on, man. My — my — my 

left hand is holding his right hand from being wrung up.

* * *

[SMITH]: This is the left hand.

[STATE]: Okay.

[SMITH]: Right hand.
[STATE]: Okay.

[SMITH]: Just like this (indicating).

[STATE]: Okay.

[SMITH]: That's how it is.

[STATE]: All right.

[SMITH]: Absolutely.

[STATE]: So fire the first shot on me.

[SMITH]: (Indicating.)

[STATE]: Okay. One right there?

[SMITH]: Absolutely.

[STATE]: Okay. Fire a second shot.

[SMITH]: Okay. And I’m — I’m pushing (indicating).

[STATE]: You’re pushing?

[SMITH]: Now you push back.

[STATE]: Okay. I’m pushing back.

[SMITH]: All right. As you push back, I’m up against the car like 

this (indicating).

[STATE]: Okay.

[SMITH]: Next shot came like this.

[STATE]: Okay.

[SMITH]: As the doctor say, he was paralyzed from the waist down.

[STATE]: Okay.
[SMITH]: That’s when he fell, the gun, everything, hat.

[STATE]: Go back.

[SMITH]: Ear piece, all fell out.

(Mar. 10, 2022, tr. 609-612.) Smith further explained why there were different 

ranges of fire for the shots:

[STATE]: All right. So you heard the doctor and the scientist testify 

as to close fire, right?

[SMITH]: Yeah, there was close fire.

[STATE]: But you said the first shot was right here?

[SMITH]: First shot, exactly how — you know, this arm reaching, 

just like I said, and the first shot was exactly what I said.

[STATE]: And then you heard there was a different range of fire for 

each shot.

[SMITH]: A different range of fire for each shot. That’s ‘cause we 

was tussling, and I was trying to hold him from using his 

gun that he said he was going to kill me with, and I was 

trying to hold him from using his gun that he said what 

he was going to kill me with. So, yes, we was tussling. All 

shots not going to be the same — in the same angle if you 

were tussling with somebody. All the shots, they going to 

be different range because it’s a tussle. That’s what a 

tussle consist of, different shots in the range. Now, if they

was straight shots all into it, then I — now I got a 

situation.

(Mar. 10, 2022, tr. 612-613.) Smith also offered testimony about the shot to Pulley’s 

back and the lack of Smith’s DNA on Pulley’s hands despite the alleged tussle:

[STATE]: So does Mr. Pulley look at the [unidentified individual

who approached Pulley’s vehicle] at that point you put 

the gun right in the guy’s back, Mr. Pulley’s back?
[SMITH]: Huh?

[STATE]: While Mr. Pulley is looking at the [unidentified 

individual], distracting him, is that when you put the gun 

in Mr. Pulley’s back?

[SMITH]: No.

[STATE]: Because the science is telling me this gun was on his back.

[SMITH]: Right. And if I can explain to the jury, again, if somebody 

rushing up against you and they arm — and they got you 

up against the car, it’s not a straight back shot. It’s a 

diagonal shot that went down to let you know that he was 

into the back like this to where the shot went down in his 

back that hit his spine. It wasn’t a straight direct shot.

[STATE]: It was like this, all six-one, 300 pounds of Mr. Pulley as 

you’re up over him, popping one in his back?

[SMITH]: Sir — sir, I can only tell you what happened. Anything 

other than this — I’m sitting here. I’m — I’m — I’m — I’m 

dead wrong. You know? This is not — it’s not — it’s not 

no game. It’s not no joke. I’m not playing. I’m only 

telling you exactly what happened. This is what 

happened.

[STATE]: All right. So you also — you’re saying you guys were 

hemming up on each other.

[SMITH]: Absolutely.

[STATE]: You heard the DNA evidence, right?

[SMITH]: The DNA evidence, I heard it.

[STATE]: Why wasn’t your DNA on his palms, his skin, his

fingernails?

[SMITH]: What’s — I didn’t say that he scratched me. I didn’t say 

that. You — you — you’re trying to say different things to 

what I’m saying, sir. I said I holded his hand from him 
raising his gun. I didn’t say that he scratched me. I didn’t 

say nothing to that nature, man. This is a serious 

requirement here, sir. None of that happened. I holded 

his hand so that he wasn’t raising his gun and so he won’t 

kill me.

(Mar. 10, 2022, tr. 615-616.)

Smith said he picked up his cell phone after the shooting and ran with 

the Davis .380 caliber gun in his right hand. He drove off without waiting for police 

because he was scared and crashed his car into a tree. “Good Samaritans” asked if 

Smith was okay following his motor vehicle accident, helped him out his car, and 

took him to a friend’s house. Smith testified that he did not wait for police at the 

scene of the crash because he was scared. 

After the conclusion of Smith’s testimony, the defense rested. Smith 

renewed his Crim.R. 29 motion for acquittal on Counts 1 through 3, which the trial 

court denied. The next day, the jury returned a not guilty verdict on Count 1, 

aggravated murder, and guilty verdicts on Counts 2 and 3, murder and felonious 

assault, and the accompanying firearm specifications. The court returned a guilty 

verdict on Count 4, HWWUD. 

The trial court sentenced Smith in May 2022. Count 3 was merged 

with Count 2 and the state elected to proceed on Count 2. Smith was sentenced to 3 

years on the firearm specifications to be served prior to and consecutive with 15 

years to life imprisonment on the base charge. The trial court sentenced Smith to 

36 months on Count 4. The court ordered that the counts be served consecutively. 
The court stated that Smith was sentenced to “life imprisonment with parole 

eligibility after serving 21 full years of imprisonment.”

Smith now appeals, raising the following assignments of error for 

review:

Assignment of Error I: The lower court erred and denied [Smith]

due process of law and a fair trial when it failed to properly charge the 

jury and provide a separate verdict form on the issue of self-defense.

Assignment of Error II: The apparent verdict finding that the State 

proved beyond a reasonable doubt that [Smith] did not act in selfdefense and was guilty of murder was against the manifest weight of 

the evidence.

Assignment of Error III: Any verdict finding the State sustained its 

burden to disprove the essential elements of a properly raised selfdefense was based upon insufficient evidence and violative of due 

process law.

Assignment of Error IV: [Smith] was deprived of his right to 

effective assistance of counsel as guaranteed by the Sixth Amendment 

to the United States Constitution. 

II. Law and Analysis

A. Jury Instructions and Verdict Forms

In the instant appeal, Smith admits the trial court’s charge on selfdefense was a correct statement of law. He argues, however, that “the Court failed 

to [e]nsure that as the jury considered each of the homicide charges that they 

understood that before they could enter a finding of ‘guilty’ it was absolutely 

necessary for them to first also determine whether the state met its burden to 

disprove Mr. Smith’s claim of self-defense and that they had to be unanimous on 

that issue.” (Emphasis sic.) Smith further contends “it is not clear [the jury] must 
have found unanimously that the state disproved at least one element of selfdefense, just as they would for any of the offenses charged.” Smith believes “the way 

in which the jury was charged in this case led to dilution and marginalization of the 

defense of self-defense to such a degree that he was deprived of a fair trial.” Smith 

asserts, “[T]he self-defense elements should have been included either before the 

consideration of the elements of the offense or at very least at the end of the elements 

of the offense so that it was properly considered by the jury before they determine 

guilt of the offense charged, not, as here, much later.”

The state argues the trial court fully and correctly instructed the jury 

on self-defense. The state cites to State v. Ellis, 8th Dist. Cuyahoga No. 109408, 

2021-Ohio-1297, to support its arguments that: (1) trial courts have broad discretion 

to fashion of jury instructions as they see fit and (2) the order in which jury 

instructions are given does not rise to plain error when the jury is instructed to 

consider the instructions as a whole. 

The record indicates that the trial court, Smith, and the state 

exchanged, reviewed, and discussed the jury instructions and verdict forms. Smith 

concedes that trial counsel did not object to the instructions; thus, this court must 

review for plain error. As Smith acknowledges, “When the defendant forfeits the 

right to assert an error on appeal by failing to bring it to the trial court’s attention in 

the first instance, an appellate court applies plain-error review.” State v. Jones, 160 

Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 17, citing State v. Rogers, 143 

Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-22; Crim.R. 52. “Under this 
review, the defendant bears the burden of ‘showing that but for a plain or obvious 

error, the outcome of the proceeding would have been otherwise, and reversal must 

be necessary to correct a manifest miscarriage of justice.’” Id. quoting State v. 

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16.

In considering whether jury instructions are incorrect due to plain 

error, “an appellate court must review the [jury] instructions as a whole and the 

entire record to determine whether a manifest miscarriage of justice has occurred as 

a result of the error in the instructions.” State v. Nicholson, 8th Dist. Cuyahoga No. 

110595, 2022-Ohio-2037, ¶ 137, citing State v. Wamsley, 117 Ohio St.3d 388, 2008-

Ohio-1195, 884 N.E.2d 45. An improper or erroneous jury instruction does not 

constitute plain error unless, but for the error, the outcome of the trial would clearly 

have been different. Nicholson at ¶ 137, citing State v. Davis, 8th Dist. Cuyahoga 

No. 109890, 2021-Ohio-2311, citing State v. Cooperrider, 4 Ohio St.3d 226, 448 

N.E.2d 452 (1983). Therefore, Smith must demonstrate that his convictions clearly 

would have been different had the trial court instructed the jury on self-defense

either before or after the elements of each offense and on the requirement of 

unanimity.

Smith claims the trial court “should have charged the jury on selfdefense prior to the charges in the indictment, or, at very least, employed the 

language used in Coffman to make sure the jury considered self-defense before they 

were permitted to make a determination of guilt on the offense charged.” Smith 

cites an instruction from State v. Coffman, 6th Dist. Ottawa No. OT-21-011, 2022-
Ohio-2431, in support of his argument: “If you find that the State proved beyond a 

reasonable doubt all of the essential elements of the crime of assault, and that the 

State proved beyond a reasonable doubt that the Defendant did not act in selfdefense, you must find the Defendant guilty according to your findings.” 

(Emphasis sic.) 

We agree with the state’s argument and reiterate the precedent set 

forth in Ellis: “A trial court has broad discretion to decide how to fashion jury 

instructions, but it must ‘fully and completely give the jury all instructions which are 

relevant and necessary for the jury to weigh the evidence and discharge its duty as 

the fact finder.’” Id. at ¶ 18, quoting State v. White, 142 Ohio St.3d 277, 2015-Ohio492, 29 N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 

640 (1990), paragraph two of the syllabus. In Ellis, this court held that jury 

instructions with correct statements of law given in a logical manner cannot be said 

to be confusing or misleading and do not rise to the level or plain error. Id. at ¶ 20

(“In considering the order of the instructions, such order could benefit a defendant, 

because a jury could acquit on the charge considered without consideration of selfdefense.”). This is especially true when the trial court advises the jury that “the 

instructions are to be taken or read as whole.” Id.

The trial court, in the instant case, provided the following instruction:

These instructions of law are to be taken or read as a whole. You cannot 

ignore one part and favor another. It is your sworn duty to accept these 

instructions and apply the law as it is given to you. You are required to 

do this apart from any notion or opinion of any kind which you may 

have as to what the law is or what the law ought to be. 
(Mar. 10, 2022, tr. 653-654.) The trial court went on to instruct the jury regarding

the elements of each offense charged. This was immediately followed by the trial 

court’s instruction regarding self-defense, a statement of law that Smith concedes 

was correct. The trial court concluded its self-defense instruction as follows:

If you find that the State proved beyond a reasonable doubt all the 

essential elements of all three offenses and that the State proved 

beyond a reasonable doubt that the defendant did not act in selfdefense, you must find the defendant guilty.

If you find that the State proved beyond a — failed to prove beyond a 

reasonable doubt any of the — any of the elements of all the offenses,

or if you find that the State failed to prove beyond a reasonable doubt 

that the defendant did not act in self-defense, you must find the 

defendant not guilty.

(Emphasis added.) (Mar. 10, 2022, tr. 679.) The trial court then provided an 

instruction regarding the requirement of a unanimous verdict: “Because this is a 

criminal case, the law requires that all 12 of you be in agreement before you consider 

that you have reached a verdict.” (Mar. 10, 2022, tr. 681.)

Thus, the jury charge included instructions, which Smith concedes 

were correct statements of law, for all of the following issues: self-defense, a finding 

regarding self-defense prior to the finding of guilt, and unanimity. The instructions 

were given in a logical manner and the trial court advised the jury that they must be 

“taken or read as whole.” Moreover, the trial court did, in fact, employ the language 

from Coffman as emphasized in in the preceding paragraph. 

This court further notes that Coffman involved one count of assault, 

and, therefore, cannot stand for the proposition that a self-defense instruction must 
be imbedded after the elements of each offense in the instance multiple charges. The 

argument that a self-defense instruction must be included after the elements of each 

offense is also unsupported by State v. Messenger, Slip Opinion No. 2022-Ohio4562, the recent Ohio Supreme Court decision discussing the implications of the 

amendment to R.C. 2901.05, Ohio’s self-defense statute. 

The Messenger Court found that the amendment did not transform 

the absence of self-defense into an essential element of a criminal offense: “Selfdefense remains an affirmative defense in Ohio, and an affirmative defense is not an 

element of a crime[.]” Id. at ¶ 24, citing State v. Hancock, 108 Ohio St.3d 57, 2006-

Ohio-160, 840 N.E.2d 1032, ¶ 35. Based on the foregoing, we cannot say the

instructions prejudiced Smith or rose to the level of plain error. Therefore, Smith’s 

argument is not well-taken.

Smith also claims “the Court below compounded error and/or created 

separate error when it failed to provide a verdict form regarding whether they 

unanimously found that the state had met its burden disproving the claim of selfdefense.” (Emphasis sic.) Smith argues the alleged error “[left] it open to question 

whether [the jury] unanimously rejected self-defense [and] undermined the entire 

verdict[ ] in this case.” Smith concedes that trial counsel did not object to the verdict 

forms and this court must review for plain error. Smith provides no legal authority 

that a jury must reject an affirmative defense of self-defense on a verdict form.

The state argues that when a jury reaches verdict after considering 

self-defense, its finding regarding the affirmative defense is inherent in that verdict. 
The state asserts that this court, as well as others, have found no plain error when a 

separate verdict form for self-defense was not provided. We agree. 

As cited by the state, in Ellis, 8th Dist. Cuyahoga No. 109408, 2021-

Ohio-1297, we held, “There is no requirement for a separate finding in trials with 

claims of self-defense.” Id. at ¶ 23. Moreover, in State v. Jones, 8th Dist. Cuyahoga 

No. 108371, 2020-Ohio-3367, this court found no error, much less plain error,

where the trial court did not provide the jury with a separate verdict form regarding 

the affirmative defense of self-defense. The Jones Court stated, “Even without a 

separate verdict form on the issue of self-defense, the jury was well aware that it was 

free to consider [the defendant’s] claim of self-defense and to find him not guilty of 

the offenses to which the defense applied on that basis, if they believed him.” Id. at 

¶ 93 (noting the jury instructions regarding self-defense were specific and detailed

and defense counsel repeatedly argued in opening and closing arguments that Jones 

acted in self-defense).

Here, the trial court included jury instructions on self-defense, which 

Smith concedes were correct statements of law. We must presume that the jury 

followed those instructions. Id. at ¶ 92, citing State v. Willis, 8th Dist. Cuyahoga No. 

107070, 2019-Ohio-537, ¶ 19. Defense counsel argued throughout trial that Smith 

acted in self-defense. Most notably, Smith testified on his own behalf, claimed he 

acted in self-defense, and re-enacted the “tussle” he had with Pulley. Therefore, we 

find, as we did in Jones, that the jury knew it was free to consider Smith’s selfdefense claim and find him not guilty if they believed the defense was credible. 
Accordingly, we find no error in the absence of a separate verdict form for selfdefense.

Because the trial court properly charged the jury and provided the 

requisite verdict forms, Smith’s first assignment is overruled.

B. Manifest Weight Review of Smith’s Murder Conviction

In his second assignment of error, Smith alleges his murder 

conviction was against the manifest weight of the evidence because the state failed 

to meet its burden disproving Smith’s self-defense claim. Essentially, Smith asserts 

that his testimony demonstrates he acted in self-defense and the state did not 

convincingly prove otherwise. 

The state argues that “substantial credible evidence [was introduced] 

to suggest that [Smith] lured Pulley to the gas station, calmly walked to Pulley’s 

vehicle, shot him to death, and then desperately tried to flee any consequence of his 

actions.” The state further claims, “[Smith] supports his assertion [that the verdict 

was against the manifest weight of the evidence] with nothing more than the fact 

that Pulley was lawfully carrying a weapon, and his own self-serving testimony.”

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.
Messenger, Slip Opinion No. 2022-Ohio-4562 at ¶ 14, quoting State v. Barnes, 94 

Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). The state has the burden of disproving 

Smith’s self-defense claim beyond a reasonable doubt. Id. at ¶ 27. This is 

accomplished by negating any one of the three elements of a self-defense claim. 

State v. Barker, 8th Dist. Cuyahoga No. 111597, 2023-Ohio-453, citing State v. 

Claytor, 8th Dist. Cuyahoga No. 110837, 2022-Ohio-1938, ¶ 81, citing State v. 

Travis, 8th Dist. Cuyahoga No. 110514, 2022-Ohio-1233. The state’s burden of 

persuasion is subject to a manifest-weight review on appeal. Messenger at ¶ 27.

When reviewing a manifest weight challenge, an appellate court, 

“‘weighs the evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the evidence, the jury 

clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.’” State v. Virostek, 8th Dist. 

Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 54, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reversal on the basis that a verdict 

is against the manifest weight of the evidence is granted “‘only in the exceptional 

case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Martin at 175.

As this court has previously stated:

The criminal manifest weight of-the-evidence standard addresses the 

evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio 

St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest weight-of-theevidence standard, a reviewing court must ask the following question: 
whose evidence is more persuasive — the state’s or the defendant’s? 

Wilson at id. Although there may be legally sufficient evidence to 

support a judgment, it may nevertheless be against the manifest weight 

of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 

2000-Ohio-276, 723 N.E.2d 1054 (2000).

When a court of appeals reverses a judgment of a trial court on the basis 

that the verdict is against the manifest weight of the evidence, the 

appellate court sits as a “thirteenth juror” and disagrees with the fact 

finder’s resolution of the conflicting testimony. Wilson at id., quoting 

Thompkins at id.

State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86-87. This 

court held, “[a] conviction is not against the manifest weight of the evidence simply 

because the jury believed the testimony of the state’s witnesses and disbelieved the 

defendant. The fact that [the defendant] testified concerning his affirmative defense 

of self-defense does not mean that the jury had to believe him.” State v. Jones, 8th 

Dist. Cuyahoga No. 108371, 2020-Ohio-3367, ¶ 85.

In its role as the “thirteenth juror,” an appellate court must review the 

entire record, weigh the direct and circumstantial evidence and all reasonable 

inferences drawn therefrom, and consider the credibility of the witnesses to 

determine “‘whether in resolving conflicts in the evidence, the [trier of fact] clearly 

lost its way and created such a manifest miscarriage of justice that the conviction 

must be reversed and a new trial ordered.’” Thompkins at 387, quoting Martin. 

“Direct evidence exists when ‘a witness testifies about a matter within the witness’s 

personal knowledge such that the trier of fact is not required to draw an inference 

from the evidence to the proposition that it is offered to establish.’” State v. Wachee, 

8th Dist. Cuyahoga No. 110117, 2021-Ohio-2683, ¶ 36, quoting State v. Cassano, 8th 
Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Conversely, “circumstantial 

evidence requires ‘the drawing of inferences that are reasonably permitted by the 

evidence.’” Id., quoting id. “‘Circumstantial evidence is proof of facts by direct 

evidence from which the trier of fact may infer or derive by reasoning other facts in 

accordance with the common experience of mankind.’” Id., quoting State v. 

Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37. “Circumstantial 

evidence and direct evidence inherently possess the same probative value.” State v. 

Jenks, 61 Ohio St.3d 259, 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.

Here, Smith testified he called Pulley to buy marijuana. Pulley took 

too long so Smith went to the HP gas station to see if Pulley was there. After Pulley 

arrived, Smith waved to Pulley and walked towards Pulley’s vehicle with a water 

bottle in one hand and a cell phone in the other. Pulley threatened to kill Smith,

pulled out a gun, cocked it, and pointed it at him. Smith claimed Pulley pushed him 

up against his vehicle with his left arm on Smith’s neck. Smith admits he shot Pulley

with the Davis .380 caliber semiautomatic handgun, which was illegal for him to

carry. Smith returned to his vehicle with gun in hand, fled the scene of the shooting,

crashed his vehicle into a tree, and fled the scene of the crash. Smith testified he fled 

both the scene of the shooting and the scene of the crash because he was scared. 

Smith claimed the locations of Pulley’s gunshot wounds and the range at which the 

shots were fired were explained by the two of them tussling. The jury observed 

Smith’s reenactments of the alleged tussle. They also observed Smith’s height,

weight, build, and demeanor. Smith did not call any witnesses to corroborate his 
testimony, rather Smith relied on circumstantial evidence: he claimed the location 

of the loaded and ready Smith & Wesson .40 caliber gun following the shooting

suggested Pulley was holding the gun when Smith shot Pulley. Smith did not claim

Pulley fired the weapon.

The state presented surveillance video of Smith arriving at the HP gas 

station 13 minutes prior to Pulley. The cameras captured Smith exiting his vehicle

and walking towards Pulley, four muzzle flashes, Pulley falling to the ground, and 

Smith returning to his vehicle with a “right angled object” in his hand. Smith did 

not dispute the state’s evidence establishing he shot Pulley with the Davis .380 

caliber handgun. 

In addition, the state presented the following evidence weighing 

against Smith’s claim of self-defense: Pulley sustained four gunshot wounds, one of 

which was a contact wound to Pulley’s back between his shoulder blades that caused 

immediate paralysis. Pulley was six feet, one inch tall and weighed 300 pounds, 

making it unlikely Smith would be able to reach around Pulley to shoot him in the 

back in such a manner. Smith claims the shot to Pulley’s back happened last, but,

even if Smith testimony is believed, another gunshot to Pulley’s left arm (the same 

arm that Smith claimed Pulley used to hold him up against the truck) broke Pulley’s 

upper arm bones, humerus, and front portion of his shoulder blade. Despite Smith’s 

claims that a tussle occurred, his DNA was not found on Pulley’s hands, palms, or 

knuckles or underneath Pulley’s fingernails. Nor was Smith’s DNA found on the 

Smith & Wesson .40 caliber handgun located near Pulley’s body. Lastly, Smith 
admittedly fled the scene of not only the shooting, but the subsequent motor vehicle 

accident. An instruction was given to the jury that while fleeing the scene does not 

raise a presumption of guilt, it may tend to indicate the Smith’s consciousness of 

guilt. 

In our role as the “thirteenth juror,” we cannot say the jury lost its way 

when it negated Smith’s self-defense claim and found any one of the following to be 

true: (1) Smith was at fault in creating the situation giving rise to the affray, or (2) 

Smith did not have a bona fide belief that he was in imminent danger of death or 

great bodily harm for which the use of deadly force was his only means of escape, or 

(3) Smith violated his duty to retreat or avoid danger. Based on the record before 

us, the jury’s determination that the state’s evidence was more credible than Smith’s 

was not against the manifest weight of the evidence and did not result in a 

miscarriage of justice. This is not the exceptional case in which the evidence weighs 

heavily against Smith’s convictions for murder and felonious assault. Therefore, 

Smith’s second assignment of error is overruled. 

C. Smith’s Self-Defense Claim

In his third assignment of error, Smith argues the jury’s finding that 

he did not act in self-defense was based on insufficient evidence. Smith does not 

argue the state failed to produce evidence on all the essential elements of murder or 

felonious assault; he asserts that the state failed to disprove his claim that he shot 

and killed Pulley in self-defense.
“A claim of insufficient evidence raises the question whether the 

evidence is legally sufficient to support the verdict as a matter of law.” State v. 

Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing Thompkins, 78 

Ohio St.3d at 386, 678 N.E.2d 541 (1997). The relevant inquiry in a sufficiency 

challenge is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime existed beyond a reasonable doubt. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 

(1991), at paragraph two of the syllabus. When making a sufficiency determination, 

an appellate court does not review whether the state’s evidence is to be believed but 

whether, if believed, the evidence admitted at trial supports the conviction. State v. 

Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at

386.

In Messenger, Slip Opinion No. 2022-Ohio-4562, the Supreme Court 

of Ohio recently addressed the issue of whether self-defense claims are subject to 

review under a sufficiency of evidence standard on direct appeal. In holding they 

are not, the Messenger Court explained: 

The state has the burden of production regarding the elements of a 

criminal offense because an accused person has the right to a 

presumption of innocence on each element. R.C. 2901.05(A); 

Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 96 L.Ed. 

288 (1952); Jackson [v. Virginia], 443 U.S. [307,] 315, 99 S.Ct. 2781, 

61 L.Ed.2d 560 [(1970)]. The presumption of innocence “is an 

instrument of proof created by the law in favor of one accused, whereby 

his innocence is established until sufficient evidence is introduced to 

overcome the proof which the law has created.” Coffin [v. United 

States, 156 U.S. 432,] 459[, 15 S.Ct. 394, 39 L.Ed. 481 (1895)].
Conversely, there is no due-process right to a presumption of an 

affirmative defense such as self-defense. State v. Hancock, 108 Ohio 

St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 37; see also Leland v. 

Oregon, 343 U.S. 790, 798-799, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) 

(legislative allocation of the burden of proving the affirmative defense 

of insanity does not raise a constitutional issue, because the affirmative 

defense is not constitutionally based). There is also no statutory right 

to a presumption of self-defense in Ohio. R.C. 2901.05(A) provides that 

an accused is “presumed innocent,” in line with the constitutionally 

guaranteed right. But R.C. 2901.05(B) states that “[a] person is 

allowed to act in self-defense.” (Emphasis added.) With no “proof 

created by the law in favor of” self-defense, see Coffin at 459, the 

defendant has the burden of producing legally sufficient evidence of 

self-defense to trigger the state’s duty to overcome that evidence.

Id. at ¶ 18-19. 

The Court found, “The plain language of R.C. 2901.05(A) reflects that 

self-defense is still an affirmative defense and that the burden of production is still 

on the defendant * * *.” Id. at ¶ 21-22 (“The amendment changed the procedure for 

adjudicating criminal cases involving evidence of self-defense; it did not make 

substantive changes to the elements of any offenses.”). The Court concluded that 

while a defendant has the burden of producing legally sufficient evidence that their 

use of force was in self-defense, the state’s burden of disproving the defendant’s selfdefense claim beyond a reasonable doubt is subject to a manifest-weight review on 

appeal. Id. at ¶ 24-27.

While Messenger was pending, Smith filed the instant appeal and 

argued the state’s burden to disprove Smith’s properly raised self-defense claim is 

subject to review under a sufficiency of evidence standard. The Messenger Court 

has since decided to the contrary: the state’s rebuttal to Smith’s self-defense claim 
is reviewed under the manifest-weight standard. For the reasons set forth above, 

the manifest weight of the evidence supports Smith’s conviction. Therefore, we 

cannot say the jury clearly lost its way in concluding the state proved beyond a 

reasonable doubt that Smith did not act in self-defense when he shot and killed 

Pulley. 

Smith’s third assignment of error is overruled. 

D. Ineffective Assistance of Counsel

Lastly, in his fourth assignment of error, Smith argues his conviction

must be reversed because his trial counsel failed to object to jury instructions and 

request a separate verdict form regarding self-defense. Smith claims that there was 

no strategic reason for trial counsel’s alleged failures, the effect of which 

“undermined and marginalized” his entire and only defense.

“A licensed attorney is presumed to be competent, and a defendant 

claiming ineffective assistance bears the burden of proof.” Ohio v. Redmond, 8th 

Dist. Cuyahoga No. 111138, 2022-Ohio-3734, citing State v. Black, 2019-Ohio-4977, 

149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100, 477

N.E.2d 1128 (1985). “‘A reviewing court will strongly presume that counsel rendered 

adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment.’” State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 

(8th Dist.), quoting State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio2175, ¶ 69. “Trial counsel’s strategic choices must be accorded deference and cannot 

be examined through the distorting effect of hindsight.” State v. Conway, 109 Ohio 
St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115, citing Strickland v. Washington, 

466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Cook, 65 

Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992). “‘Debatable trial tactics do not 

constitute [ineffective] assistance.’” State v. Williams, 8th Dist. Cuyahoga No. 

97730, 2012-Ohio-4277, ¶ 18, quoting State v. Clayton, 62 Ohio St.2d 45, 49, 402 

N.E.2d 1189 (1980). “Speculation about the factfinder’s possible reaction to trial 

counsel’s strategy is insufficient to demonstrate prejudice.” Redmond at ¶ 42, citing

State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, at ¶ 142.

To gain reversal on a claim of ineffective assistance of counsel, a 

defendant must show that (1) his “counsel’s performance was deficient,” and (2) “the 

deficient performance prejudiced the defense.” Strickland at 687. The first prong 

of Strickland’s test requires the defendant to show “that counsel’s representation fell 

below an objective standard of reasonableness.” Id. at 688. Strickland’s second 

prong requires the defendant to show “a reasonable probability that but for counsel’s 

errors, the proceeding’s result would have been different.” State v. Winters, 8th 

Dist. Cuyahoga No. 102871, 2016-Ohio-928, ¶ 25, citing Strickland. The failure to 

prove either prong of this two-part test makes it unnecessary for a court to consider 

the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), 

citing Strickland at 697.

Here, Smith has not demonstrated that his trial counsel’s 

performance was ineffective or prejudicial. Because we found no error in either the 

jury instructions or the verdict forms as discussed above, we cannot say Smith’s trial 
counsel performed deficiently. Smith’s counsel was not obligated to object to the

jury instructions based on an objective standard of reasonableness because the

instructions were presented in a logical manner and were complete and accurate 

statements of law compiled in logical manner. Moreover, Smith’s counsel’s alleged 

failure to object to the verdict forms was also objectively reasonable because a 

separate form for self-defense was not required. Therefore, Smith’s counsel’s 

performance was not deficient and his decision not to object was in the exercise of 

reasonable professional judgment. Because the first prong of the Strickland test has 

not been proven, we need not consider the second. 

Smith’s fourth assignment of error is overruled.

III. Conclusion

The trial court properly charged the jury regarding self-defense and 

unanimity. The jury instructions were full, complete, logically ordered, and 

admittedly included accurate statements of law. We cannot say the jury instructions 

prejudiced Smith or rose to the level of plain error. Nor can we say the absence of a 

separate self-defense verdict form was erroneous; the jury was well-aware Smith 

was claiming self-defense because of the arguments raised by defense counsel 

throughout trial, Smith’s own testimony, and the inclusion of self-defense in the jury 

instructions. Moreover, Smith’s murder and felonious assault convictions are not 

against the manifest weight of the evidence and the State was not required to present 

sufficient evidence to disprove Smith’s self-defense claim. Lastly, Smith’s trial 
counsel was not ineffective. Trial counsel’s failure to object to the jury instructions 

and verdict forms was not deficient because neither were erroneous. 

Accordingly, judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending is terminated. Case remanded to 

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

ANITA LASTER MAYS, A.J., and

EILEEN A. GALLAGHER, J., CONCUR