[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,
2 OHIO FIRST DISTRICT COURT OF APPEALS
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?
3 OHIO FIRST DISTRICT COURT OF APPEALS
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
4 OHIO FIRST DISTRICT COURT OF APPEALS
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
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[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,
2 OHIO FIRST DISTRICT COURT OF APPEALS
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?
3 OHIO FIRST DISTRICT COURT OF APPEALS
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
4 OHIO FIRST DISTRICT COURT OF APPEALS
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
5 OHIO FIRST DISTRICT COURT OF APPEALS
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
6 OHIO FIRST DISTRICT COURT OF APPEALS
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.