State v. Gibson , 2023 Ohio 1640 ( 2023 )

[Cite as State v. Gibson, 2023-Ohio-1640.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220283
TRIAL NO. 22-CRB-2278
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
GARLAND GIBSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 17, 2023
Emily Smart-Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Joseph Cossins, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} Following a dispute between defendant-appellant Garland Gibson and
the mother of their three children, victim Seretha Turner, Mr. Gibson was found guilty
of domestic violence. On appeal, he maintains that the evidence established that he
acted in self-defense, thus rendering his domestic violence conviction against the
manifest weight of the evidence. However, Ms. Turner’s testimony sufficed to support
a domestic violence conviction and to negate Mr. Gibson’s self-defense claim, and we
see nothing in the record that undermines the trial court’s judgment. Accordingly, we
overrule Mr. Gibson’s assignment of error and affirm the judgment of the trial court.
I.
{¶2} On the evening of February 13, 2022, Superbowl Sunday, Ms. Turner
drove to Mr. Gibson’s residence to pick up two of their children (she had picked up the
third the day before). A swirling exchange of angry texts between the pair preceded
her arrival, and by the time she pulled up, it was clear that Mr. Gibson was intoxicated
(and angry). Ms. Turner waited a few minutes, and then her children wandered
outside on the cold evening without their coats on, which irritated her. She stepped
out of the car as Mr. Gibson followed the children out of the home.
{¶3} At that point, Ms. Turner noticed that Mr. Gibson was stomping towards
her car, and she realized that his anger was directed toward her daughter, already
situated in the car. Ms. Turner, in an attempt to protect her daughter, stepped forward
to stop Mr. Gibson. She testified that, as she stood in his way, he pushed her to the
ground and, as she reached out to try to prevent herself from falling, one of his
dreadlocks got tangled in her fingers and fell off. Mr. Gibson, on the other hand,
testified that she attacked him first, pulling out one of his dreadlocks, and that she fell
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OHIO FIRST DISTRICT COURT OF APPEALS
down as he defensively pushed her off of him. Despite these disparate accounts, both
parties agree that Mr. Gibson was threatening to physically punish their daughter
when Ms. Turner intervened.
{¶4} Following this violent interaction, the children in the car began to cry
and scream. Their eldest daughter hurled a curse word towards Mr. Gibson, which
further enraged him. He continued approaching the car, admonishing his daughter
not to use that kind of language and again threatening to physically punish her. Ms.
Turner pulled herself up from the ground and once again inserted herself between Mr.
Gibson and the children in the car. Undeterred, Mr. Gibson threw her back to the
ground.
{¶5} Eventually, Mr. Gibson walked inside his residence, and Ms. Turner
called the police. The police arrived at the scene about a half hour later and spoke with
both individuals. Ms. Turner showed the police her injured fingers and complained of
a sore side. She immediately left for the hospital after departing from Mr. Gibson’s
residence, and the doctor who treated her diagnosed bruised ribs from the falls.
{¶6} Police arrested Mr. Gibson that same night and the state charged him
with domestic violence under R.C. 2919.25(A). A protective order followed. In April
2022, following a bench trial, the court found Mr. Gibson guilty. At a subsequent
sentencing hearing, he received a suspended sentence of 180 days in jail with credit
for time served. He was sentenced to 11 months of probation, which included
requirements that he remain employed and have no contact with his family until he
made progress with alcohol abuse treatment. After receiving leave by this court to file
a delayed appeal, Mr. Gibson appealed, insisting that his domestic violence conviction
was against the manifest weight of the evidence due to his self-defense claim.
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OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶7} Mr. Gibson insists that his domestic violence conviction was contrary to
the manifest weight of the evidence where the weight of the evidence established that
he acted in self-defense.
{¶8} When faced with a manifest weight of the evidence challenge, we must
consider whether the state “carried its burden of persuasion” before the trial court.
State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26; see State v. Martin, Slip
Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the burden of production, which concerns
a party’s duty to introduce enough evidence on an issue, the burden of persuasion
represents a party’s duty to convince the factfinder to view the facts in his or her favor.
Messenger at ¶ 17. Therefore, in order for us to conclude that the factfinder’s
adjudication of conflicting evidence ran counter to the manifest weight of the
evidence—which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that weighed
against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-388, 678 N.E.2d 541(1997). We accordingly sit as a “thirteenth juror” in this respect. Id.{¶9} Pursuant to R.C. 2919.25(A), “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.” Mr. Gibson does
not contest that he and Ms. Turner share three children, nor that he twice pushed her
away from him. Rather, he maintains that he took his actions in self-defense, and he
challenges the trial court’s rejection of this argument.
{¶10} Ohio’s recently amended self-defense law requires that, “if there is
evidence presented at trial that tends to support that the defendant used force against
another in self-defense or in defense of another, the state must prove beyond a
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OHIO FIRST DISTRICT COURT OF APPEALS
reasonable doubt that the defendant did not use the force in self-defense or defense of
another.” State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 49,
citing R.C. 2901.05(B)(1). “Once the initial showing is made, the burden of persuasion
requires the state to disprove at least one of the elements of self-defense * * * beyond
a reasonable doubt.” Id. at ¶ 49.
{¶11} Here, the fact that Mr. Gibson lost a dreadlock during the altercation
tends to support a conclusion that he acted in self-defense. Therefore, the burden
shifted to the state to disprove self-defense by establishing beyond a reasonable doubt
that the defendant: (1) was at fault in creating the situation giving rise to the affray;
(2) did not have reasonable grounds to believe or an honest belief that he or she was
in imminent danger of bodily harm; or (3) violated a duty to retreat or avoid the
danger. Id. at ¶ 50, citing State v. Carney, 10th Dist. Franklin No. 19AP-402, 2020-
Ohio-2691, ¶ 31.
{¶12} “The state need only disprove one of the elements of self-defense beyond
a reasonable doubt.” Id. at ¶ 51. Therefore, in evaluating a manifest weight challenge
involving self-defense, we must review the entire record, consider the credibility of
witnesses, and determine whether the trier of fact clearly lost its way and created a
manifest miscarriage of justice with respect to its finding that the state disproved at
least one of the elements of self-defense beyond a reasonable doubt. See Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶13} Mr. Gibson suggests that he was not at fault in creating the situation
leading to him injuring Ms. Turner because she attacked him first. However, both
individuals testified that Mr. Gibson was threatening to physically punish their
daughter and approaching their daughter in anger. Ms. Turner testified that he
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OHIO FIRST DISTRICT COURT OF APPEALS
attacked her as she attempted to prevent him from harming their daughter. Had Mr.
Gibson not issued these threats or attempted to physically confront his daughter, it is
reasonable to assume that the dispute leading to Ms. Turner’s injuries never would
have occurred. While Mr. Gibson testified that Ms. Turner attacked him first (pulling
out his dreadlock), the trial court sat in the best position to weigh the credibility of the
witnesses and was free to believe or disbelieve her testimony (that she accidentally
pulled out his dreadlock as she fell after being pushed). And in fact, on the record, the
trial court noted that Ms. Turner seemed very credible while testifying while Mr.
Gibson seemed to be a less reliable witness.
{¶14} Mr. Gibson draws our attention to the Twelfth District’s decision in
State v. Montgomery, 12th Dist. Clermont No. CA2015-03-028, 2015-Ohio-4652.
This case stands for the proposition that seeing and hearing testimony is not the sole
criterion for judging credibility, and that even testimony that is delivered with
sincerity may not be believable. Id. at ¶ 23. Fair enough, but in this case, Ms. Turner’s
testimony was sufficiently consistent and believable, and nothing in the record
persuades us otherwise.
{¶15} On this record, we cannot say that the trial court clearly lost its way or
created a manifest miscarriage of justice in determining that the state proved beyond
a reasonable doubt that Mr. Gibson was at fault in creating the situation that led to
him harming Ms. Turner. And because the state must disprove beyond a reasonable
doubt just one of the elements of self-defense, Mr. Gibson’s arguments with respect to
the second and third elements are moot.
{¶16} Accordingly, we overrule Mr. Gibson’s sole assignment of error.
* * *
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} In light of the foregoing analysis, we overrule Mr. Gibson’s sole
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
WINKLER, J., concurs.
BOCK, J., concurs separately.
BOCK, J., concurring separately.
{¶18} I concur in the majority’s opinion because I agree that Mr. Gibson was
at fault in creating the situation when he threatened to physically harm his daughter.
But I write separately to discuss credibility determinations and eye contact.
{¶19} When rendering its decision, the trial court stated, “Mr. Gibson would
not look at me when I swore him in to tell the truth. So when I’m looking at demeanor
of witnesses, no one else can see, hear, or feel the things that I’m seeing, hearing or
feeling. He would not even look at me when I was swearing him in to tell the truth.”
{¶20} To be clear, I do not believe that the trial court’s credibility
determination was based solely on the defendant’s lack of eye contact. After all, the
trial court noted that it could see, hear, and feel the defendant’s demeanor. I write
separately to address credibility determinations based on eye contact as a general
concern, not one specific to this trial judge or this case.
{¶21} Demanding eye contact as proof of sincerity ignores that a witness may
struggle with making eye contact for perfectly legitimate reasons. For example,
victims of sexual assault may avoid eye contact due to fear or shame. See, e.g., State
v. Artis, 6th Dis. Lucas No. L-19-1267, 2021-Ohio-2965, ¶ 23 (Grandmother testified
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OHIO FIRST DISTRICT COURT OF APPEALS
that her grandchild avoided eye contact while telling her how she was sexually
assaulted.). People who are on the autism spectrum or have ADHD often exhibit poor
eye contact. See, e.g., Chartkoff v. Am. Elec. Power, S.D.Ohio No. 2:16-cv-1186, 2018
U.S. Dist. LEXIS 50762, *8 (Mar. 27, 2018) (“Dr. Kaufman noted facts he found
consisted with a diagnosis of autism, including that Plaintiff had poor eye contact and
rarely used non-verbal gestures during the examination.”); Dept. of Edn. v. Leo W.,
226 F. Supp. 3d 1081, 1109 (D.Haw.2016) (“ ‘[P]oorly modulated eye contact’ was
noted as an indication of autism, but it is also ‘very common’ in people with
ADHD[.]”). Social anxiety disorder, post-traumatic stress disorder, and shyness may
also contribute to poor eye contact. And when one is undergoing the stress and anxiety
caused by defending against criminal charges, that stress and anxiety might be the very
reason that a person cannot maintain eye contact.
{¶22} When it comes to eye contact, one size does not fit all. I encourage trial
courts to consider reasons for lack of eye contact beyond lack of credibility.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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