State v. Greenstreet ( 2023 )

[Cite as State v. Greenstreet, 2023-Ohio-4224.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30387
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GARRETT M. GREENSTREET COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 21 10 3678
DECISION AND JOURNAL ENTRY
Dated: November 22, 2023
STEVENSON, Judge.
{¶1} Defendant-Appellant Garrett Greenstreet (“Greenstreet”) appeals from the
judgment of the Summit County Court of Common Pleas. For the reasons that follow, this Court
affirms.
I.
{¶2} Greenstreet was indicted on one count of felonious assault by means of a deadly
weapon in violation of R.C. 2903.11(A)(2)/(D)(1)(a), a felony of the second degree. The charges
stemmed from a physical altercation that took place between Greenstreet and his roommate, C.P.,
that resulted in Greenstreet stabbing C.P. multiple times with a knife.
{¶3} Greenstreet pleaded not guilty to the charges and a jury trial was held. The State
presented testimony from C.P., two eyewitnesses, four police officers, and a paramedic that
responded to the scene. Greenstreet testified in his defense. Greenstreet moved for acquittal under
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Crim.R. 29 after the State rested and renewed the motion at the end of trial. The trial court denied
the motion both times.
{¶4} The jury found Greenstreet guilty, and the trial court sentenced him to an indefinite
term of not less than five years and a maximum of not more than seven years and six months in
prison. Greenstreet timely appealed and asserts two assignments of error for our review. For ease
of analysis, Greenstreet’s assignments of error will be addressed out of order.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN OVERRULING THE MOTIONS FOR
ACQUITTAL PURSUANT TO CRIMINAL RULE 29.
{¶5} At trial, Greenstreet’s defense was that he acted in self-defense when he stabbed
C.P. Under this assignment of error, Greenstreet argues that the trial court erred in denying his
Crim.R. 29 motions for acquittal because the State presented insufficient evidence to prove beyond
a reasonable doubt that he did not use force in self-defense when he stabbed C.P.
{¶6} In State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, the Ohio Supreme
Court addressed the question of whether the State’s burden of proof in rebutting a defendant’s self-
defense claim is subject to a sufficiency-of-the evidence standard of review. As in the instant case,
Messenger argued at trial that he acted in self-defense and moved for an acquittal under Crim.R.
29 after the State rested and again at the end of trial. Id. at ¶ 7. Both motions were denied. Id.
{¶7} The Ohio Supreme Court accepted the appeal in Messenger on the following
proposition of law: “‘Self-defense claims may be reviewed on direct appeal for sufficiency of the
evidence.’” Id. at ¶ 12. The Messenger Court first addressed the legislative amendment to R.C.
2901.05(B)(1), which changed the procedure for adjudicating criminal cases involving evidence
of self-defense, noting that it “triggers the state’s duty to disprove self-defense so long as ‘there is
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evidence presented that tends to support that the accused person used the force in self-defense.’”
Id. at ¶ 20, quoting R.C. 2901.05(B)(1).
{¶8} The Messenger Court then clarified that:
The change to the state’s burden of persuasion regarding self-defense in R.C.
2901.05(B)(1) did not change the elements of [the defendant’s] charged offenses *
* *. A statutory requirement that the state must disprove an affirmative defense
beyond a reasonable doubt does not in itself cause the affirmative defense to
become an element of the offense. Self-defense remains an affirmative defense in
Ohio, and an affirmative defense is not an element of a crime[.]
(Emphasis added.) (Internal citations omitted.) Id. at ¶ 24.
{¶9} With the foregoing in mind, the Messenger Court held that “[t]he State’s new
burden of disproving the defendant’s self-defense claim beyond a reasonable doubt is subject to a
manifest-weight review on appeal, and the Tenth District correctly declined to review the state’s
rebuttal of self-defense for sufficiency of the evidence.” Id. at ¶ 27. (Emphasis added.). In so
holding, the Messenger Court recognized the Tenth District’s explanation that “the sufficiency-of-
the evidence standard of review applies to [a defendant’s] burden of production and a manifest-
weight-of-the-evidence standard of review applies to the state’s burden of persuasion.” Id. at ¶ 26.
{¶10} This Court recently applied Messenger in State v. McElroy, 9th District Lorain No.
22CA011846, 2023-Ohio-1609. In McElroy, the jury returned a guilty verdict, finding that
McElroy “did not act in self-defense or in the defense of her residence in the death of the victim *
* *.” Id at ¶ 4. McElroy orally moved for a Crim.R. 29 acquittal at the close of the state’s case, at
the close of all the evidence, and again after the jury’s verdict. Id. at ¶ 3, 5. McElroy also filed a
written motion which the State opposed. Id. at ¶ 5. The trial court granted McElroy’s motion,
stating that the State failed to present sufficient evidence to disprove the affirmative defense of
self-defense. Id. at ¶ 6. The State appealed to this Court, assigning as error that the trial court
improperly applied a sufficiency-of-the evidence analysis to McElroy’s self-defense claim.
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{¶11} Relying on Messenger, this Court agreed with the State that its burden of disproving
the defense of self-defense was subject to a manifest weight review on appeal rather than a
sufficiency analysis, and thus, the trial court erred in granting McElroy’s Crim.R. 29 motion for
acquittal. Id. at ¶ 14.
{¶12} Accordingly, based on the authority of Messenger and McElroy, we must apply a
manifest weight of the evidence standard of review to the State’s burden of disproving self-defense
rather than a sufficiency of the evidence review in the instant matter. Messenger at ¶ 27.
Therefore, Greenstreet’s assignment of error is without merit and overruled.
ASSIGNMENT OF ERROR I
APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE BECAUSE THE EVIDENCE FAILS TO PROVE
BEYOND A REASONABLE DOUBT THAT APPELLANT WAS NOT
ACTING IN SELF-DEFENSE.
{¶13} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier
of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986). “A reversal on this basis is reserved for the exceptional case in which the evidence
weighs heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-
Ohio-3970, ¶ 26. This Court “‘will not overturn a conviction as being against the manifest weight
of the evidence simply because the trier of fact chose to believe the State’s version of events over
another version.’” State v. Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 25, quoting
State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 15.
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{¶14} It is undisputed that the altercation between C.P. and Greenstreet began inside their
residence at 842 Austin Avenue after they returned from a night of drinking and shooting pool at
two local bars. Greenstreet’s friend, J.B., was also present at the residence. C.P. and Greenstreet
got into an argument over Greenstreet’s relationship with C.P.’s girlfriend. C.P. attacked
Greenstreet, pushing him up against the wall and punching him in the face. Greenstreet fled
outside. C.P. followed him, put him on the ground, and assaulted him again. The neighbor across
the street, J.S., called out for them to stop fighting and they stopped. Greenstreet retreated inside
the house. He locked the doors, proceeded to smash some of C.P.’s valuables, and called 911.
{¶15} C.P. testified that he decided the fight was over when Greenstreet retreated to the
house. He thought he might be able to stay with a neighbor for a while and started to walk away.
Upon hearing that Greenstreet was smashing his belongings, C.P. tried to enter the home but
discovered the doors were locked, so he kicked the side door open, thinking he could salvage his
belongings. Instead, he restrained himself and did not go inside, fearing that something “bigger
and heavier” would transpire. C.P. asked J.B. for a ride out of the neighborhood to flee from the
situation, but J.B. did not want to be involved and refused. C.P. walked to a neighbor’s yard and
hid in the flower bed.
{¶16} The recording of Greenstreet’s 911 call from inside the residence reflects that he
told the 911 operator C.P. had come back inside the house and stabbed him. Greenstreet later
admitted during his testimony that he had lied about that fact. J.B. and J.S. both corroborated
C.P.’s testimony that C.P. never went back inside the house after he kicked the side door.
{¶17} A few minutes later, Greenstreet came back outside, went across the street to J.S.’s
house, knocked on her door, and asked her if she was hiding C.P. C.P., J.S., and J.B., all testified
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that Greenstreet yelled that he was going to kill C.P. C.P. overheard Greenstreet from his hiding
place in the neighbor’s flower bed. Greenstreet then went back inside the house.
{¶18} According to C.P.’s testimony, thinking that things had calmed down, he got up
from the flower bed and started walking in the middle of the street towards the intersection of
Austin Ave. and Virginia Ave. when he saw Greenstreet “bee lining” towards him. C.P. drew back
with his left hand to punch Greenstreet, but before the punch landed, Greenstreet struck C.P. in the
stomach with a knife, causing C.P. to fall to the ground.
{¶19} J.B. testified that after Greenstreet returned home from J.S.’s house, Greenstreet
came running outside with a knife in his hand, which he then used to attack C.P. while standing
over him. J.B. further testified that while C.P. was on the ground, J.B. saw Greenstreet cutting his
own hand with the knife.
{¶20} Greenstreet testified that when he left J.S.’s house and returned home, C.P. was
inside “yelling and freaking out.” Greenstreet said he went up to the front door but did not go
inside. According to Greenstreet, C.P. came outside screaming Greenstreet’s name and chasing
Greenstreet around the outside of the house and into the middle of the street. Greenstreet claims
that he then ran at C.P., saw C.P. lunging toward him with his fists, and attempted to block him,
but C.P. stabbed Greenstreet’s left hand and dropped the knife on the ground. Greenstreet said he
picked up the knife and used it to stab C.P. “because [he] didn’t know what else to expect.”
{¶21} C.P. denied ever having a knife. J.S. and J.B. both testified that they never saw
C.P. with a knife. Greenstreet testified that he ran at C.P., rather than back to the house where he
could have escaped further problems, because he was angry that C.P. had embarrassed him by
beating him up.
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{¶22} Greenstreet stabbed C.P. nine times, injuring his wrist, chest, lung, leg, buttocks,
and colon. J.B. called 911. Ten minutes elapsed between the time of Greenstreet’s 911 call from
inside the residence and J.B.’s 911 call. The police and paramedics responded. C.P. and
Greenstreet were transported to the hospital and treated for their injuries. C.P. required surgery
and physical therapy to recover from his injuries. Greenstreet was treated for the injury to his
hand.
{¶23} Greenstreet does not contest that he committed the crime of felonious assault under
R.C. 2903.11(A)(2)/(D)(1)(a). He argues that he acted in self-defense when he stabbed C.P.
multiple times.
Self-defense requires that a defendant: (1) was not at fault in creating the situation
giving rise to the affray; (2) had a bona fide belief that he was in imminent danger
of * * * great bodily harm and that his only means of escape * * * was in the use
of such force; and (3) did not violate any duty to * * * avoid the danger.
State v. Zink, 9th Dist. Lorain No. 21CA011813, 2023-Ohio-1250, ¶ 9, quoting State v. Warren,
9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 12, citing State v. Barnes, 94 Ohio St.3d 21, 24
(2002). “‘All three of these elements must be present to establish self-defense.’” Id. Also, “[t]he
defense of self-defense is not available if the defendant used more force than was reasonably
necessary and if the force used was greatly disproportionate to the apparent danger.” State v.
Wright, 6th Dist. Lucas No. L-16-1053, 2017-Ohio-1225, ¶ 28, citing State v. Gray, 2d Dist.
Montgomery No. 26473, 2016-Ohio-5869, ¶ 8; State v. Johnson, 6th Dist. Lucas No. L-08-1325,
2009-Ohio-3500, ¶ 12.
{¶24} Greenstreet contends that the three episodes of the fight between him and C.P.
constituted one continuous course of events. Based on that contention, he argues that his conduct
satisfies the elements of a self-defense claim because: 1) C.P. was the one at fault in creating the
situation giving rise to the stabbing because C.P. started the fistfight; 2) he had a bona fide belief
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that he was in imminent danger of death or great bodily harm and was trying to avoid further injury
when he stabbed C.P. because C.P. had tried to get back into the house after beating him up twice;
3) C.P. stabbed him first; and 4) he did not violate any duty to retreat or avoid the danger.
Greenstreet maintains that this is the exceptional case in which the evidence weighs heavily against
the conviction and that the jury lost its way in concluding that he was not acting in self-defense.
{¶25} We note preliminarily that in accordance with Ohio’s new stand-your-ground law,
which eliminated the duty to retreat from an attacker in any place in which one is lawfully present,
the trial court instructed the jury not to consider the possibility of retreat as a factor in determining
whether Greenstreet reasonably believed that the use of force in self-defense was necessary. See
R.C. 2901.09(B) and (C). Thus, whether Greenstreet violated a duty to avoid the danger by not
retreating is not an issue in this case.
{¶26} The State conceded that C.P. started the fistfight and was responsible for beating
up Greenstreet two times; once inside the residence and a second time outside. The State also
concedes that Greenstreet presented some evidence tending to support the use of force in self-
defense, thus triggering its “duty to disprove self-defense.” Messenger, 171 Ohio St.3d 227, 2022-
Ohio-4562, at ¶ 20. However, the State argues that Greenstreet’s self-defense opportunity expired
after the second fistfight when Greenstreet retreated inside the home and C.P. walked away, and
that Greenstreet was the initial aggressor in the stabbing incident. The State maintains that
Greenstreet started a new fight and escalated the situation when he came back outside carrying a
knife ten minutes after the fistfight was over. The State further avers that at that time, Greenstreet
no longer had a reason to believe he was in imminent danger, and that even if he did, his use of a
knife in defense of a fistfight constituted unreasonable force.
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{¶27} The State presented evidence that after the two fistfights were over, Greenstreet
obtained a knife from inside the residence, went outside looking for C.P. who was hiding from
Greenstreet, told J.S. he wanted to kill C.P., then later encountered C.P. in the street and repeatedly
stabbed him with a knife. The testimony of C.P., J.S. and J.B. was consistent with one another.
They all testified that after the second fistfight was over and Greenstreet locked himself inside the
residence, C.P. kicked the side door in upon realizing that Greenstreet was destroying his
belongings, but that C.P. never went back inside. C.P., J.S., and J.B. all said they overheard
Greenstreet tell J.S. he wanted to kill C.P. J.B. also testified that Greenstreet came outside carrying
a knife and later saw Greenstreet cut his own hand. None of the State’s witnesses testified that
they ever saw C.P. with a knife.
{¶28} Contrary to Greenstreet’s testimony, the testimony of C.P., J.S., and J.B. all show
that C.P. did not initiate the stabbing, but instead, after the fight was over and ten minutes after
Greenstreet’s 911 call, Greenstreet came out of the residence with a knife in his hand, threatening
to kill C.P., and without provocation, stabbed C.P. The jury was free to believe the State’s
evidence and disbelieve Greenstreet. The State presented evidence from which the jury could have
reasonably concluded that the altercation between C.P. and Greenstreet was over after the second
fistfight, that C.P. did not have a knife, and that Greenstreet reinitiated the “situation giving rise to
the affray” when he pursued C.P. with a knife and stabbed him. Zink, 9th Dist. Lorain No.
21CA011813, 2023-Ohio-1250, at ¶ 9.
{¶29} The jury could have also reasonably concluded from the State’s evidence that
Greenstreet did not have a bona fide belief that he was in imminent danger of great bodily harm
when he stabbed C.P. C.P. testified that he had walked away, was hiding in the neighbor’s flower
bed, and was hoping to get a ride out of the neighborhood and remove himself from the situation.
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Greenstreet himself testified that he thought C.P. was hiding at J.S.’s house. Thus, the jury could
have inferred that Greenstreet believed C.P. had withdrawn from the situation and was no longer
a threat. Furthermore, although Greenstreet retreated to his home after leaving J.S.’s house, he
came back outside rather than remain inside until the police arrived, which contradicts his
testimony that he was in fear of C.P. The jury was free to reject his testimony that he stabbed C.P.
because he feared for his life and/or that he would suffer great bodily harm.
{¶30} The jury could have further reasonably concluded that Greenstreet’s use of a knife
in defense of C.P. was not Greenstreet’s “only means of escape.” Zink at ¶ 9. As previously noted,
J.B. and J.S. corroborated C.P.’s testimony that he never had a knife in his hand. Thus, the jury
was free to disbelieve Greenstreet and find that Greenstreet’s use of a knife was not reasonably
necessary, and was disproportionate, unreasonable force in self-defense. See State v. Moore, 9th
Dist. Summit No. 29581, 2023-Ohio-2864, ¶ 14; Wright, 6th Dist. Lucas No. L-16-1053, 2017-
Ohio-1225, ¶ 28; Johnson, 6th Dist. Lucas No. L-08-1325, 2009-Ohio-3500, at ¶ 12.
{¶31} The jury heard testimony from C.P., Greenstreet, two eyewitnesses, the paramedic,
and four police officers. The jury listened to the 911 calls and viewed videos from J.B.’s cell
phone and the responding officers’ body-worn cameras. The jury chose not to find Greenstreet
credible. The jury, as the trier of fact, was in the best position to evaluate the credibility of the
testimony and evidence and was free to believe the State’s theory of the events and reject
Greenstreet’s version. State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29.
Accordingly, the jury’s determination that Greenstreet did not act in self-defense is not against the
manifest weight of the evidence. Greenstreet’s first assignment of error is overruled.
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III.
{¶32} Based on the foregoing, the judgment of the Summit County Court of Common
Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
CARR, J.
CONCUR.
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APPEARANCES:
PAUL E. MEYER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.