[Cite as State v. Salinas, 2016-Ohio-7171.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY

__________________________________________________________________


STATE OF OHIO,                                             CASE NO. 4-15-21

       PLAINTIFF-APPELLEE,

       v.

PAULETTA D. SALINAS,                                       OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Defiance County Common Pleas Court

                                 Trial Court No. 14-CR-1195

                                       Judgment Affirmed

                             Date of Decision: October 3, 2016



APPEARANCES:

        W. Alex Smith for Appellant

        Russell R. Herman for Appellee
Case No. 4-15-21


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Pauletta Salinas (“Pauletta”) brings this appeal

from the judgment of the Court of Common Pleas of Defiance County entering

judgment of the jury’s verdict finding her guilty of felonious assault and sentencing

her on the conviction. On appeal Salinas challenges 1) the jury instruction given on

the self-defense claim and 2) the effectiveness of counsel. For the reasons set forth

below, the judgment is affirmed.

       {¶2} On July 29, 2014, police responded to a domestic disturbance call

involving Pauletta and her husband, Vincent Salinas (“Vincent”). When the police

arrived, they found Vincent bleeding from a gunshot wound inflicted by Pauletta.

Pauletta claimed that Vincent had attempted to rape her and she shot him in self-

defense. Vincent claimed that they were engaged in consensual rough sex and she

hit him with the gun and shot him.

       {¶3} On August 7, 2014, the Defiance County Grand Jury indicted Pauletta

on two counts: 1) Attempted Aggravated Murder in violation of R.C. 2923.02 and

2903.01(A) with a firearm specification, an unclassified felony and 2) Felonious

Assault in violation of R.C. 2903.11(A)(2), a felony of the second degree. Doc. 1.

A jury trial was held from September 8-11, 2015. At the conclusion of the trial, the

jury returned a verdict of not guilty as to the attempted aggravated murder with the

firearm specification and a verdict of guilty as to the felonious assault charge. Doc.

42. A sentencing hearing was held on November 12, 2015. Doc. 47. The trial court

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sentenced Pauletta to six years in prison. Id. On December 2, 2015, Pauletta filed

her notice of appeal. Doc. 50. Pauletta raises the following assignments of error on

appeal.

                             First Assignment of Error

       [Pauletta] received ineffective assistance of counsel and violation
       of [her] rights under the sixth and [fourteenth] amendments to
       the United States [C]onstitution [and] Article I, Section 10 of the
       [C]onstitution of the State of Ohio.

                            Second Assignment of Error

       [Pauletta’s] sixth and fourteenth amendments were violated when
       she was given an improper jury instruction of self-defense under
       [R.C.] 2901.05(A) rather than presumptive self-defense under
       [R.C.] 2901.05(B).

For clarity, we will be addressing the assignments of error out of order.

       {¶4} Pauletta claims in the second assignment of error that the trial court

should have instructed on self-defense as set forth in R.C. 2901.05(B) rather than

that in R.C. 2901.05(A). Initially, this court notes that no request for this instruction

was made at the time of trial. Thus, any alleged error must be reviewed under a

plain error standard of review. State v. Russell, 5th Dist. Stark No. 2003CA00039,

2003-Ohio-5324.      To prevail under a plain error analysis, the appellant must

demonstrate that the outcome of the trial clearly would have been different but for

the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). “Notice of plain

error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id. at 808.

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Case No. 4-15-21


       The statute in question states in pertinent part as follows.

       (A) Every person accused of an offense is presumed innocent until
       proven guilty beyond a reasonable doubt, and the burden of proof
       for all elements of the offense is upon the prosecution. The burden
       of going forward with the evidence of an affirmative defense, and
       the burden of proof, by a preponderance of the evidence, for an
       affirmative defense, is upon the accused.

       (B)(1) Subject to division (B)(2) of this section, a person is
       presumed to have acted in self-defense or defense of another when
       using defensive force that is intended or likely to cause death or
       great bodily harm to another if the person against whom the
       defensive force is used is in the process of unlawfully and without
       privilege to do so entering, or has unlawfully and without
       privilege to do so entered, the residence or vehicle occupied by the
       person using the defensive force.

       (2)(a) The presumption set forth in division (B)(1) of this section
       does not apply if the person against whom the defensive force is
       used has a right to be in, or is a lawful resident of, the residence
       or vehicle.

       ***

       (3) The presumption set forth in division (B)(1) of this section is a
       rebuttable presumption and may be rebutted by a preponderance
       of the evidence.

R.C. 2901.05. Pauletta argues that it was plain error for the trial court not to give

the instruction that she had no duty to retreat because she was in her own home.

However, this would only affect the outcome of the trial if the jury were to find that

Vincent had unlawfully entered the residence. A review of the record indicates that

there was evidence presented that indicated that Vincent had been invited to the

home. Vincent testified that she had asked him to come to the house after work and


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Case No. 4-15-21


text messages from her phone to Vincent’s indicated that she wanted him to come

over. Thus, the jury could reasonably believe that Vincent had a right to be in the

residence.   The evidence does not show that but for the failure to give that

instruction, the outcome of the case would have clearly been different. The second

assignment of error is overruled.

       {¶5} In the first assignment of error, Pauletta claims she was denied effective

assistance of counsel.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial and
       substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
       71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
       When making that determination, a two-step process is usually
       employed. “First, there must be a determination as to whether
       there has been a substantial violation of any of defense counsel's
       essential duties to his client. Next, and analytically separate from
       the question of whether the defendant's Sixth Amendment rights
       were violated, there must be a determination as to whether the
       defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
       (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
       623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
       3135, 57 L.Ed.2d 1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
       Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905. The

failure to prove either 1) a substantial violation or 2) prejudice caused by the



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violation makes it unnecessary for a court to consider the other prong of the test.

State v. Anaya, 191 Ohio App.3d 602, 2010-Ohio-6045, 947 N.E.2d 212, ¶ 25.

       {¶6} Here, Pauletta claims that her counsel was ineffective for not requesting

an instruction on self-defense as set forth in R.C. 2901.05(B) and instead just

accepting the instruction as set forth in R.C. 2901.05(A). As discussed above, the

evidence does not support the conclusion that the outcome of the trial would have

clearly been different if the instruction to the jury had been different. Without a

showing of prejudice, this court cannot find that counsel was ineffective for failing

to request a different instruction. The first assignment of error is overruled.

       {¶7} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Defiance County is affirmed.

                                                                 Judgment Affirmed



SHAW, P.J. and PRESTON, J., concur.

/hls




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