Background
On May 14, 2023, Demarco Smith was shot at the Budget Host Inn on Central Parkway in Cincinnati. The next night he returned to the motel armed, looking for his assailants. He backed his truck into a parking spot in front of a group that included A.S., N.H., and M.H., exited with his gun drawn and aimed at them, and demanded to know whether any of them had shot at him the previous night. A.S. calmed Smith, who lowered — but did not put away — his gun. At that moment C.R. appeared in a motel-room doorway wearing a mask. After a brief exchange, gunfire erupted: in under 30 seconds, Smith fired four shots and C.R. fired two. Smith, C.R., W.D., and G.K. were wounded but survived; A.S., shot in the chest, torso, and hand, died.
Smith was indicted on eight counts. He tried two weapons-under-disability counts to the bench and the rest to a jury. The trial court granted Crim.R. 29 acquittal on one felonious-assault count and a tampering count. The jury acquitted Smith of purposeful murder under R.C. 2903.02(A) but convicted him of murder with specifications under R.C. 2903.02(B), two counts of felonious assault with specifications, and the disability counts. After merging specifications and counts, the trial court imposed consecutive terms totaling 45 years to life, with 783 days of jail-time credit. At sentencing, the court stated that Smith “had no right to self-defense because he came there with a gun with the intention of . . . shooting [who shot at him],” and, citing R.C. 2914(B)(2)(a)(i) through (v), found 15 years to life on the murder count alone inadequate to punish Smith and protect the public.
The Court’s Holding
Writing for the panel, Judge Moore overruled all five assignments of error and affirmed. On manifest weight, the court held the State disproved the first element of self-defense — that Smith was not at fault in creating the situation — beyond a reasonable doubt. Smith’s argument that C.R. was the initial aggressor failed because Smith aggressively approached a group that posed no threat with his gun drawn; his withdrawal argument failed because he never holstered the gun or otherwise put it out of sight after the encounter de-escalated. Because the State need disprove only one element, the self-defense claim failed.
On jury instructions, the court found no plain error. Smith had not objected. The trial court expressly instructed that Smith had no duty to retreat in a place he lawfully had a right to be, and reiterated that point in response to jury questions. The court explained that R.C. 2901.09(C) does not suggest that a trier of fact is precluded from considering whether the defendant was the initial aggressor or attempted to withdraw when assessing fault, and that Smith conflated “withdrawal” (pertaining to the at-fault element) with “retreat” (pertaining to the third element). On prosecutorial misconduct, the court held the prosecutor’s closing remarks about consciousness of guilt — leaving the hospital, changing appearance, hiding, and asking a girlfriend to erase texts — were based on trial evidence, and the trial court had not restricted the State from arguing record evidence even though the instruction itself listed only the hospital departure. With no objection, plain-error review applied, and no misconduct occurred.
On the evidentiary ruling, the court found no abuse of discretion. The trial court’s explanation was dispositive: defense counsel failed to object to the State’s question to N.H. about whether the shooting would have occurred had Smith not approached, while the State did object to the defense’s mirror-image question about C.R. The record showed no prejudice, as it was evident the shooting would not have occurred but for Smith’s actions. Finally, the court upheld the consecutive sentences under R.C. 2953.08(G)(2)’s clear-and-convincing standard, finding the record supported the R.C. 2929.14(C)(4) findings, including that the harm was so great or unusual that no single term adequately reflected the seriousness of the conduct and that consecutive terms were necessary to protect the public.
Key Takeaways
- A self-defense claim fails where the defendant aggressively approaches a non-threatening group with a drawn gun and never holsters it, making him the initial aggressor who did not withdraw.
- R.C. 2901.09(C) does not preclude a jury from considering initial aggression or withdrawal on the at-fault element; withdrawal and retreat are distinct inquiries tied to separate elements.
- Unobjected-to closing arguments grounded in trial evidence do not constitute prosecutorial misconduct under plain-error review, even where the related jury instruction was narrower.
- Asymmetric evidentiary rulings survived review because the defense failed to object to the State’s question while the State objected to the defense’s, and no prejudice appeared.
- A 45-years-to-life aggregate consecutive sentence was affirmed as clearly and convincingly supported by the record under R.C. 2929.14(C)(4).
Why It Matters
The decision reinforces that Ohio’s “Stand Your Ground” statute does not shield a defendant who creates the confrontation: eliminating the duty to retreat does not bar juries from weighing initial aggression and incomplete withdrawal on fault. It also underscores the practical consequences of failing to object — to instructions, closing arguments, and opposing counsel’s questions — which confined each of Smith’s challenges to plain-error or abuse-of-discretion review he could not overcome.