         [Cite as State v. Elliott, 2019-Ohio-3594.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                         :   APPEAL NO. C-180294
                                                           TRIAL NO. B-1702979
        Plaintiff-Appellee,                            :

  vs.                                                  :     O P I N I O N.

MARKEISHA ELLIOTT,                                     :

    Defendant-Appellant.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 6, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Judge.


       {¶1}   The gasoline of social media, poured on a simmering feud, sparked a

conflagration that left one person dead. A murder prosecution ensued, resulting in a

conviction that gives rise to this appeal.     But the defendant only presents an

ineffective assistance claim in this appeal, insisting that defense counsel should have

pursued an “accident” theory at trial rather than “defense of another.” The record,

however, undermines the vitality of the accident theory, preventing us from

concluding that trial counsel committed a strategic blunder here. For the reasons

discussed below, we accordingly affirm the conviction.

                                          I.

       {¶2}   During an afternoon in May 2017, Tyshara Walker was involved in a

physical altercation with an acquaintance after being refused a ride, and she

ultimately summoned the police to report the incident. After the altercation, Ms.

Walker returned to work and tried to put the matter behind her, but the constant

ding of Facebook alerts on her phone distracted her. Like wildfire, word spread

about the incident and Ms. Walker’s decision to call the police, which attracted the

scorn of the Facebook community. Shawnice Johnson chimed in with the mob-like

chorus, prompting a Facebook back-and-forth between her and Ms. Walker in which

the two eventually agreed to “meet up” that evening, mutually understood to be an

agreement to fight.

       {¶3}   By the time the two met on the corner of Stanton Avenue and Oak

Street, the entire neighborhood appeared aware of the looming fight and eager to

witness it. Though disputed whether everyone pulled up in cars with Ms. Walker, or

if the crowd was already milling about, by the time Ms. Johnson and Ms. Walker met

face-to-face, a crowd had gathered (some members even brandishing makeshift,


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Walking Dead-esque weapons). Among those present in the crowd was Ms. Walker’s

older sister, Markeisha Elliott.

       {¶4}     Though initially someone attempted to defuse the situation, the scene

quickly devolved into a melee, with Ms. Walker and Ms. Johnson at the epicenter.

With punches and kicks flying, the two combatants ultimately tumbled to the

ground. Video footage captured on cellphones from that evening reveals that it was

then that Ms. Elliott, sitting on the sidelines until this point, advanced over to where

her sister and Ms. Johnson wrestled on the ground. She approached the two with a

small, pointed object in hand, which Ms. Elliott later acknowledged was a knife. Ms.

Elliott then bent over and made a thrusting movement with the hand holding the

knife in the direction of Ms. Johnson. In the wake of that blow, Ms. Johnson

stumbled to her feet, clutching her neck. The crowd quickly dispersed as the severity

of Ms. Johnson’s wounds became apparent. Though rushed to the hospital, the knife

had punctured Ms. Johnson’s left carotid artery; she eventually lost consciousness

and later died. After a police investigation, Ms. Elliott was indicted and tried for

murder, two counts of felonious assault, and tampering with evidence.

       {¶5}     At trial, Ms. Elliott’s defense counsel presented a defense of another

theory, seeking to establish that she acted only to protect the life of her sister that

evening. On the witness stand, Ms. Elliott admitted she stabbed Ms. Johnson, but

portrayed it as an accident:

       Q: * * * What happened when you reached in to pull these people

       apart?

       A: I accidently stabbed [Ms. Johnson].

                                         ***

       Q: * * * And I’m going to ask you, why did you stab [Ms. Johnson]

       then?

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       A: It was an accident.

       Q: It was an accident?

       A: Yes, sir.

                                         ***

       A: I was trying to save [Ms. Walker], and it was an accident that I

       swung and stabbed [Ms. Johnson] on accident. Yes, sir.

       {¶6}    The jury ultimately found Ms. Elliott guilty of murder and the two

counts of felonious assault; the court sentenced her to 15 years to life in prison.

From this conviction, Ms. Elliott now raises a single assignment of error, contending

that she received ineffective assistance of counsel at trial because her counsel failed

to request a jury instruction on the defense of accident.

                                               II.

       {¶7}    The crux of Ms. Elliott’s ineffective assistance of counsel claim targets

her counsel’s alleged failure to request a jury instruction on the defense of accident.

Ms. Elliott maintains that, based on her testimony regarding the purported

unintentional nature of the stabbing, such an instruction was warranted. A claim of

ineffective assistance of counsel requires findings (1) that counsel’s representation

was deficient, i.e., it fell below an objective standard of reasonableness, and (2) that

this inadequacy prejudiced the defendant. State v. Bradley, 42 Ohio St.3d 136, 142,

538 N.E.2d 373 (1989).

       {¶8}    Similar to self-defense, a claim of defense of another acknowledges

that the defendant used force that caused harm to another person, but the

circumstances justified the actions. State v. Wenger, 58 Ohio St.2d 336, 340, 390

N.E.2d 801 (1979) (“[O]ne who intervenes to help a stranger stands in the shoes of

the person whom he is aiding[.]”); State v. Moss, 10th Dist. Franklin No. 05AP-610,

2006-Ohio-1647, ¶ 13 (“Defense of another is a variation of self-defense. Under

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certain circumstances, one may employ appropriate force to defend another[.]”).

Therefore, a successful claim of defense of another legally excuses an otherwise

criminal use of force in defending another person. State v. Williford, 49 Ohio St.3d

247, 250, 551 N.E.2d 1279 (1990) (defendant could have used reasonable force to

defend wife and family, as he would have been entitled to use to defend himself).

Conversely, the defense of accident is not an affirmative defense “offered like self-

defense to justify admitted conduct * * * . The defense of accident, instead,

constitutes a denial or negation of the culpable mental state of the charged offense.”

State v. Swan, 1st Dist. Hamilton No. C-900655, 1991 WL 207271, *2 (Oct. 9, 1991).

       {¶9}   In light of the incompatibility between the two defenses, counsel’s

decision not to request the defense of accident instruction could therefore fall within

the bounds of reasonable trial strategy. State v. Marshall, 175 Ohio App.3d 488,

2008-Ohio-955, 887 N.E.2d 1227, ¶ 86 (1st Dist.) (“[W]e hold that counsel engaged

in sound trial strategy by not raising self-defense or defense of others * * *. These

defenses conflicted with the complete defense * * * presented—that [the defendant]

was not the shooter.”); State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88

N.E.3d 935, ¶ 22 (counsel’s decision not to request jury instruction was reasonable

trial strategy when instruction would undercut the theory of the case); State v.

Schwendeman, 2018-Ohio-240, 104 N.E.3d 44, ¶ 21-23 (4th Dist.) (sound trial

strategy not to request jury instruction considering defense put forth at trial). This is

because “[t]he test for a claim of ineffective assistance of counsel is not whether

counsel pursued every possible defense; the test is whether the defense chosen was

objectively reasonable.” State v. Crawford, 2d Dist. Montgomery No. 22314, 2008-

Ohio-4008, ¶ 29. Faced with Ms. Elliott’s own statement, that she admittedly knife-

in-hand “swung” at Ms. Johnson, but “accidently” stabbed her, coupled with video of

the incident depicting Ms. Elliott approach the victim, bend over and make a


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deliberate thrusting motion, counsel could have reasonably made a strategic decision

to pursue defense of another over that of accident. See State v. Jones, 2018-Ohio-

239, 104 N.E.3d 34, ¶ 25 (4th Dist.) (counsel’s decision not to request jury

instruction was reasonable based on defendant’s testimony). Indeed, that strikes us

as the better hand to play at trial given the evidence.

       {¶10} Further bolstering counsel’s decision was the proper instruction the
jury received as to the necessary mens rea of “knowingly” required for a finding of

guilt. “[T]he accident defense is not an excuse or justification for the admitted act,”

the instruction instead simply “remind[s] the jury that the defendant presented

evidence to negate the element of knowledge.”             State v. Stubblefield, 1st Dist.

Hamilton No. C-890597, 1991 WL 17219, *3 (Feb. 13, 1991) (ineffective assistance of

counsel where no instruction on accident was requested by counsel and court failed

to define “knowingly” in jury instruction). Thus, the fact that the jury received the

proper instruction as to “knowingly,” and then found Ms. Elliott nevertheless

culpable, suggests that they rejected any possibility of accident.

       {¶11} In sum, under these circumstances, and considering the evidence
presented at trial, counsel’s decision not to request a jury instruction on defense of

accident fell within the ambit of reasonable trial strategy. Counsel’s performance

was therefore not deficient. Crawford at ¶ 29 (“A reviewing court may not second-

guess decisions of counsel which can be considered matters of trial strategy.”).

Furthermore, we need not address whether Ms. Elliott suffered prejudice in light of

the finding that counsel’s performance met the constitutional standards of adequacy.

Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373 (“ ‘[T]here is no reason for a court

deciding an ineffective assistance claim * * * to address both components of the

inquiry if the defendant makes an insufficient showing on one.’ ” quoting Strickland

v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We



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therefore overrule Ms. Elliott’s sole assignment of error and affirm the judgment of

the trial court.

                                                                Judgment affirmed.

MOCK, P.J., and MYERS, J., concur.
Please note:
       The court has recorded its own entry this date.




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