Youngstown Daily Legal News

Man who fired rifle at police loses appeal

ANNIE YAMSON
Special to the Legal News
Published: March 14, 2016

The appeal of a Columbus man who fired an assault rifle at police was overruled recently by the 10th District Court of Appeals.

Judge Lisa Sadler authored the opinion that affirmed the judgment of the Franklin County Court of Common Pleas and rejected four assignments of error from appellant Sherron Massalay.

On Jan. 28, 2015, Massalay was indicted on two counts of first-degree felonious assault.

The evidence presented during a four-day jury trial established that Massalay stood on the front porch of his house on Lockbourne Road, chucked a kitchen knife at a police car and then fired one shot from a rifle at Columbus Police Officers Paul Tobin and Joseph Townsend.

The officers testified that, before the shot was fired, they could hear Massalay yelling at them from his porch telling them to get away from his house, blaming them for the death of another man and threatening to kill them.

A SWAT team was called to the scene to recover the rifle and apprehend Massalay, who was found to have plenty of ammunition in his home.

At the time, Massalay’s fiancé and two children were in the house.

At trial, Massalay’s fiancé testified that she saw Massalay pacing through the house on the day of the incident in a panicked and paranoid state.

She said he believed somebody was coming to get him and “they” were shooting at him.

In his defense, Massalay testified that the gun fired by accident.

Although he had taken the magazine out of the firearm, one bullet remained in the chamber and he said that he “tensed up” and pulled the trigger when he saw police in front of his house.

Massalay had no explanation for how a large kitchen knife hit one of the police cruisers and he admitted that he had only shot his rifle once before.

Despite his lack of a criminal record or prior arrests, the trial court imposed a total prison sentence of 18 years.

On appeal, Massalay assigned four errors to the trial court proceedings.

According to him, his convictions were not supported by sufficient evidence, the trial court erred when it failed to merge his convictions and he was deprived his constitutional rights to equal protection and effective assistance of counsel.

The appellate panel found little merit to his claims.

“In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution’s evidence is to be believed but whether, if believed, the evidence supports the conviction,” Sadler wrote for the court of appeals.

Massalay argued that it was factually impossible for both officers to have been struck by one bullet, therefore, he could not have been aware that his conduct could have caused injury to a second victim.

That, he argued, meant he did not commit his crime knowingly, therefore, he could not be convicted of felonious assault, which requires a knowing action and an element of the offense.

The court of appeals pointed to the officers’ testimony that Massalay threatened them and pointed a rifle directly at them while they were standing near each other.

“Moreover, we do not find that the record shows, as appellant suggests, that it was factually impossible for both officers to be physically harmed by one shot,” Sadler wrote. “The officers' testimony established that the semiautomatic rifle is a powerful weapon, and that the officers were in very close proximity to each other when the shot was fired, in such position to appellant that each officer believed the rifle to be aimed at him.”

Since both officers were in the line of fire, the appellate panel concluded that the evidence supported Massalay’s convictions.

The court of appeals used the same reasoning to overrule Massalay’s second assignment of error in which he argued that his convictions should have merged because he could not have harmed two victims.

“As previously resolved in the first assignment of error, the circumstances of this case do not support appellant's factual impossibility argument,” Sadler wrote. “As the evidence presented at trial was sufficient to convict appellant of felonious assault for the count associated with Tobin as well as the count associated with Townsend, this is a case involving two separate victims.”

In a third assignment of error, Massalay claimed that he was denied his right to equal protection because the prosecution discriminated based on race during jury selection.

But, based on the record, the appellate panel held that the state provided race-neutral reasons for its peremptory challenges of the jurors.

“Therefore, based on the record, we do not find the trial court’s rejection of appellant’s Batson challenges to rise to the level of clear error,” Sadler wrote.

The court of appeals also found that Massalay was provided the effective assistance of defense counsel before it overruled all of his assignments of error and affirmed the judgment of the Franklin County court.

Judges Susan Brown and Timothy Horton joined Sadler to form the majority.

The case is cited State v. Massalay, 2016-Ohio-779.

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