State v. Melendez , 2012 Ohio 2385 ( 2012 )

[Cite as State v. Melendez, 2012-Ohio-2385.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97175
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CRUZ MELENDEZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-547961
BEFORE: Stewart, J., Blackmon, A.J., and Jones, J.
RELEASED AND JOURNALIZED: May 31, 2012
ATTORNEY FOR APPELLANT
Ruth R. Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland Heights, OH 44118
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Holly M. Welsh
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Cruz Melendez appeals from her conviction for
felonious assault with a deadly weapon stemming from a physical altercation with victim
Jazmin Flores. Melendez complains that the trial court erred by not providing the jury
with an instruction on the use of nondeadly force, that her motion for acquittal was denied
without a hearing, and that there was insufficient evidence to convict her. For the
following reasons, we affirm.
{¶2} Testimony offered by Melendez and the testimony offered by Flores
concerning the events that transpired on the day of the incident conflict significantly.
Flores testified that she was driving down West 25th Street and, as a courtesy, motioned a
vehicle that was driven by Melendez to exit a plaza parking lot and to proceed ahead of
her. Flores followed the vehicle and observed what she described as commotion taking
place between Melendez and a child passenger in the back seat. Melendez testified that
Flores struck the rear bumper of her vehicle while quickly changing lanes in an attempt to
pass her.
{¶3} Melendez testified that she pulled into a parking lot and gestured for Flores to
pull over while she inspected her car for damage, and when Flores continued on without
stopping, Melendez reentered her vehicle and pursued Flores. Flores recounted
becoming concerned for the safety of her child passengers when a visibly irate Melendez
reappeared in her rear view mirror, so she pulled into a nearby auto repair shop parking
lot where she made deliveries as part of her employment, and honked her horn in order to
summon help. Flores testified that Melendez, in turn, parked her car next to a fence just
inside the entrance of the parking lot.
{¶4} Melendez stated that Flores exited her vehicle and approached Melendez’s
car. In response, Melendez and her cousin, Ketsia Rosado, got out of the car and walked
toward Flores. Repair shop owner Sherman Moore testified that he walked out of the
repair shop and into the parking lot just as the altercation began to escalate, and building
owner Gary Grace testified that he arrived at the scene by car at the same time.
{¶5} Melendez stated that, after coming into close proximity with Flores, she
recognized her as the woman who had been having a sexual relationship with her
boyfriend, Pito. Flores questioned Melendez as to her identity, and when Melendez
replied that her name is “Daisy,” Flores realized that she was being confronted by Pito’s
girlfriend. An intense argument ensued and threats were exchanged.
{¶6} Flores and Melendez offered different versions of the ensuing scuffle; each
alleging that the other struck first. Flores claims that she reacted to being attacked by
swinging at Melendez and grabbing her hair only after seeing Melendez’s hand move.
Melendez contends that Flores attacked first, and then Moore intervened by restraining
her to aid Flores. Nevertheless, what is uncontroverted is that Melendez struck Flores in
the head with a glass bottle.
{¶7} Officer Amy Milner of the Cleveland Police Department was dispatched to
the scene and arrived as Flores was receiving emergency medical attention. By this time,
Melendez had left the scene. Milner interviewed Flores, Moore, and Grace, and later
questioned Melendez at the Second District police station. Melendez told Officer Milner
that just prior to the fight, Flores approached her with what she believed to be brass
knuckles and in response, she hit Flores in the face with a bottle that she happened to be
holding.
{¶8} Melendez was indicted on two counts of felonious assault, and a jury
convicted her of one count of felonious assault with a deadly weapon. Melendez assigns
the following errors for our review: (1) the court erred in neglecting to instruct the jury
relative to self-defense involving nondeadly force, (2) the court erred by denying her
Crim.R. 29 motion absent a hearing or opportunity for the defense to support the motion,
and (3) the jury erred in convicting her without sufficient evidence. We will address
Melendez’s assignments of error in reverse order for ease of discussion.
{¶9} In her third assignment of error, Melendez complains that the jury incorrectly
found her guilty because there was insufficient evidence to support the verdict. We
note that Melendez supports her sufficiency-of-the-evidence challenge by arguing her
claim of self-defense. However, a defendant claiming self-defense does not seek to
disprove an element of the offense charged, but instead seeks to relieve herself from
culpability. Sufficiency is a test of adequacy and whether the evidence is legally
sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d
380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶10} Melendez does not specifically argue this assignment of error other than
setting forth the applicable law regarding sufficiency of evidence. We can, therefore,
summarily overrule this assignment of error. See App.R. 12(A)(2); App.R. 16(A).
However, our review of the record finds that there is sufficient evidence to sustain
Melendez’s conviction.
{¶11} When reviewing the sufficiency of the evidence to support a criminal
conviction, an appellate court examines the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶12} Melendez was convicted of felonious assault, the elements of which are
stated in R.C. 2903.11, providing in pertinent part that:
(A) No person shall knowingly: * * * (1) [c]ause serious physical harm to
another * * * (2) [c]ause or attempt to cause physical harm to another * * *
by means of a deadly weapon or dangerous ordnance, as defined in section
2923.11 of the Revised Code.
“Knowingly” is defined in R.C. 2901.22(B),which states that: “A person acts knowingly,
regardless of his purpose, when he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.”
{¶13} While Flores testified that she did not see the glass bottle in Melendez’s
hand when she was hit in the face, the testimony of others establishes that Melendez
knowingly approached and struck Flores with the bottle. Grace testified that he saw
Melendez walk toward Flores with the container cupped in her hand to conceal it before
striking Flores. Moore testified that Melendez advanced toward Flores with her hands
down, and when Flores was struck, he saw glass flying. The testimony of Grace and
Moore establishes that Melendez acted “knowingly.”
{¶14} The element of “serious physical harm” as defined by R.C. 2901.01(A)(5),
includes: “(d) Any physical harm that involves some permanent disfigurement or that
involves some temporary, serious disfigurement * * * (e) Any physical harm that involves
acute pain of such duration as to result in substantial suffering.” Moore testified that
after Flores was hit with the bottle, he saw “blood everywhere,” and Grace also testified
that “blood was running down her head.” Officer Milner testified that Flores had
suffered a cut over her right eye and received treatment from Cleveland Emergency
Medical Services. Medical records from the emergency room that were admitted into
evidence indicate that Flores was experiencing sharp and severe head pain, right shoulder
pain, and had a one centimeter laceration over her right eye. We have repeatedly held
that when a victim’s injuries are serious enough to cause the victim to seek medical
treatment, it may be reasonably inferred that the force exerted on the victim caused
serious physical harm. State v. Wyland, 8th Dist. No. 94463, 2011-Ohio-455, ¶ 32; State
v. Walker, 8th Dist. No. 52391, 1987 WL 13027 (June 18, 1987).
{¶15} “Deadly weapon,” as defined by R.C. 2923.11(A), means “any instrument,
device, or thing capable of inflicting death, and designed or specially adapted for use as a
weapon, or possessed, carried, or used as a weapon.” Glass bottles and mugs have been
found to constitute a deadly weapon. See State v. Chappell, 8th Dist. No. 79589,
2002-Ohio-676; State v. Blaine, 8th Dist. No. 85113, 2005-Ohio-3831; State v. Chancey,
8th Dist. Nos. No. 75633 and 76277, 2000 WL 193235 (Feb. 17, 2000).
{¶16} Uncontroverted eyewitness testimony established that Melendez used a glass
bottle as a weapon to forcefully strike Flores on the head. The state also admitted into
evidence an envelope containing shards of broken bottle glass along with photographs of
the same lying on the parking lot pavement. The state’s evidence demonstrates that all
elements of the crime were present, and the evidence was sufficient to support
Melendez’s conviction. Accordingly, her third assignment of error is overruled.
{¶17} In her second assigned error, Melendez complains that the trial court erred
when it denied her motion for acquittal without a hearing. She argues that her
constitutional right to be heard was denied.
{¶18} The record indicates that at the end of the state’s case, Melendez’s counsel
made an oral motion for acquittal without setting forth any grounds for the relief sought,
and did not request a hearing on the motion. In State v. Lutz, 8th Dist. No. 80241,
2003-Ohio-275, the appellant complained that the trial court did not allow him to orally
argue his Crim.R. 29 motion. In that case, this court stated that “[a]lthough it may have
been a preferable procedure for the court to permit defense counsel to argue his case on
this motion, the rule does not state that the court is required to do so.” Lutz at ¶ 139.
This court also found that the “defendant was not prejudiced when his counsel was not
permitted to argue in support of the Crim.R. 29 motion” because the evidence was
“overwhelming in [the] case.” Id. at ¶ 141.
{¶19} Lutz establishes that the trial court’s ruling on a Crim.R. 29 motion does not
require a hearing. And here, as in Lutz, the denial of Melendez’s motion was warranted
even without a hearing because the state presented overwhelming evidence sufficient to
prove each element of the offense of felonious assault. Melendez’s second assignment
of error is overruled.
{¶20} For her first assignment of error, Melendez argues that the trial court erred
when it did not instruct the jury relative to the defense of self-defense involving
nondeadly force. While Melendez concedes that the trial court provided an instruction
on self-defense involving the use of deadly force, she points out that the trial court did not
make clear to the jury that there was no duty for her to retreat if she employed less than
deadly force to protect herself.
{¶21} Because Melendez failed to request a jury instruction on nondeadly force at
trial, she has waived all but plain error. This court may, pursuant to Crim.R. 52(B),
notice plain errors or defects that affect a defendant’s substantial rights. The alleged
error must have substantially affected the outcome of the trial to rise to the level of plain
error. State v. Slagle, 65 Ohio St.3d 597, 604-605, 605 N.E.2d 916 (1992); State v.
Carman, 8th Dist. No. 90512, 2008-Ohio-4386, at ¶ 12. However, we do not find plain
error with regard to the jury instructions.
{¶22} The defendant bears the burden of proof for the affirmative defense of
self-defense, and if self-defense is proven, it will relieve a defendant of criminal liability
for the force utilized. State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, 959
N.E.2d 1097, ¶ 22 (8th Dist.). A trial court must instruct a jury on the issue of
self-defense involving nondeadly force if there is sufficient evidence on the applicability
of the self-defense to the charged offenses. State v. Griffin, 2d Dist. No. 20681,
2005-Ohio-3698, ¶ 16, citing State v. Ervin, 75 Ohio App.3d 275, 279, 599 N.E.2d 366(8th Dist.1991).
{¶23} An instruction on the use of nondeadly force requires a defendant to
demonstrate (1) that she is not at fault in instigating the situation that resulted in the
altercation; and (2) that she had a reasonable and honest belief, even if mistaken, that she
was in imminent danger of bodily harm, and using force not likely to cause death or great
bodily harm was her sole means of protecting herself. Griffin at ¶ 18, citing State v.
Hansen, 4th Dist. No. 01CA15, 2002-Ohio-6135, ¶ 24. Although a real or perceived
threat of death or great bodily harm is necessary to justify the use of deadly force in
self-defense, this type of dangerous threat is not required in order to use less than deadly
force to repel an anticipated attack. Akron v. Dokes, 31 Ohio App.3d 24, 25, 507 N.E.2d
1158 (9th Dist.1986), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979).
Furthermore, there is no duty to retreat under any circumstances when nondeadly force is
used in self-defense. Hansen at ¶ 24.
To establish [a deadly force] self-defense, a defendant must prove
the following elements: (1) that the defendant was not at fault in creating
the situation giving rise to the affray; (2) that the defendant had a bona fide
belief that he was in imminent danger of death or great bodily harm and that
his only means of escape from such danger was in the use of [deadly] force;
and (3) that the defendant did not violate any duty to retreat or avoid the
danger.
State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002), citing Robbins at
paragraph two of the syllabus.
{¶24} The trial court first instructed the jury on the use of nondeadly force, but did
not state that there was no duty to retreat if nondeadly force was employed. However,
because Melendez used a glass bottle, the trial court also gave a jury instruction on deadly
force self-defense. The trial court informed the jury that the defense of self-defense was
not available if the force used was unnecessary or greatly disproportionate to the
apparent danger with which a defendant was confronted.
{¶25} Melendez argues that she did not initiate the altercation because Flores
struck her car from the rear and continued driving after being signaled to stop. She
further testified that she followed Flores to the auto repair shop only to discuss the car
accident, and not to fight. Melendez claims that Flores instigated the fight in the
parking lot by brandishing brass knuckles and threatening to kill her. Melendez alleges
that when she was attacked, she had an honest belief of impending bodily injury because
she believed that Flores was armed with brass knuckles. Therefore, she insists that her
fear was a natural reaction, and she had no other recourse but to defend herself.
Photographs of Melendez show bruising over her eye and scratches on her face and neck,
injuries that she attributed to Flores’s assault.
{¶26} Members of the Cleveland Police Department testified that Melendez was
not present at the scene when they arrived. Later during her questioning, Melendez
claimed that Flores had brass knuckles. None were recovered from the scene.
{¶27} Melendez maintains that she had no duty or obligation to retreat before she
could be legally justified in using force in self-defense. However, Melendez utilized a
deadly weapon to defend herself, and a self-defense instruction on the use of deadly force
and the duty to retreat is proper “when physical harm was inflicted by means of a deadly
weapon or dangerous ordnance.” Columbus v. Dawson, 33 Ohio App.3d 141, 514 N.E.2d
908 (10th Dist.1986), paragraph two of the syllabus; State v. Sims, 8th Dist. No. 85608,
2005-Ohio-5846, ¶ 16.
{¶28} Therefore, if Melendez believed that she was being assaulted with brass
knuckles, then she was facing deadly force and had a duty to retreat because the threat of
death or great bodily harm to her was potentially imminent. If Melendez’s fear was only
of bodily harm, she was allowed by law only to use an amount of force that was not likely
to cause death or great bodily harm. Melendez’s decision to strike Flores in the head
with a bottle was deadly force and was disproportionate to the threat she faced under
these circumstances. The trial court’s instructions to the jury included the requirements
for self-defense where a dangerous weapon was used to inflict deadly force as well as
instructions on the use of force not likely to cause death or great bodily harm. The jury
instructions by the trial court were proper. Melendez had a duty to retreat before
resorting to deadly force in defense. Her first assignment of error is accordingly
overruled.
{¶29} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The
defendant’s conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR