State v. Schooler

[Cite as State v. Schooler, 2020-Ohio-4327.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28596
:
v. : Trial Court Case No. 2019-CRB-4669
:
KIM SCHOOLER : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of September, 2020.
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ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant Prosecuting Attorney, City of
Dayton Prosecutor’s Office, 335 West Third Street, Room 390, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Kim Schooler appeals from her conviction following a bench trial on one
count of assault, a first-degree misdemeanor.
{¶ 2} Schooler advances two assignments of error. First, she contends the trial
court erred in sustaining an objection when she tried to impeach the victim’s testimony
with a prior inconsistent statement. Second, she claims the trial court erred in failing to
find that she acted in self-defense when she sprayed the victim with mace. Therefore,
she argues that her conviction was against the manifest weight of the evidence.1
{¶ 3} The present appeal stems from an incident that occurred inside the rental
office of an apartment complex on September 11, 2019. The first witness at trial was the
victim, Elaine Washington. She testified that she went to the office to complain to Litisha
Thompson, the office secretary, about Schooler’s conduct. When Washington entered the
office, Schooler already was there lodging her own complaint. Washington testified that
she approached the secretary’s window but kept her distance from Schooler. According
to Washington, she was “nowhere near” Schooler and stayed “way far” away from her
inside the office. Washington testified that she and Schooler were not talking to one
another inside the office, and Schooler did not say anything directly to her. Washington
denied making any threats to Schooler, moving toward Schooler, or putting her hands on
Schooler. Washington also denied reaching into her own back pocket, which she claimed
was empty. According to Washington, Schooler suddenly came toward her and sprayed
1 Under her second assignment of error, Schooler references convictions for aggravated
menacing and aggravated assault. She was charged with these offenses, however, she
was not convicted of them. For present purposes, we will construe her second assignment
of error as a challenge to her assault conviction on the basis that she was acting in self-
defense. This plainly is what she intends to argue.
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mace or pepper spray in her face.
{¶ 4} On cross-examination, Washington confirmed that she did not say anything
to Schooler before being sprayed. Defense counsel then attempted to ask Washington
what she had told a defense investigator the prior day on the telephone. In particular,
counsel asked whether Washington had told the investigator that she had told Schooler,
“No one argues with my sister.” (Trial Tr. at 10.) The prosecutor raised a hearsay
objection. (Id.) Defense counsel responded: “Your Honor, this is actually impeachment.
I’m impeaching her prior inconsistent statement, so it’s not hearsay.” (Id. at 11.) The
prosecutor then argued: “Yeah, but you are using it by your own statements. You don’t
have the person here to testify to those inconsistent statements.” (Id.). The trial court
sustained the hearsay objection, telling defense counsel and Schooler, “You would need
your investigator here to provide that inconsistent statement. Not you. So I’ll sustain.” (Id.)
The trial court also refused to allow defense counsel to impeach Washington with
evidence of her prior conviction for abuse of the 9-1-1 system. The trial court found a lack
of evidence that the offense involved dishonesty or a false statement as required by
Evid.R. 609. (Id. at 11-13.)
{¶ 5} The next witness was Thompson, the apartment complex office secretary.
She testified that Schooler was inside the office talking to her about people outside
“messing” with Schooler. According to Thompson, Washington entered the office and
asked Schooler why Schooler was “messing” with “Keisha” and trying to fight Keisha.
Thomson testified that a conversation ensued between Washington and Schooler. (Id. at
20-21.) Thompson added, however, that the two women stayed four or five steps away
from one another during the conversation. Thompson also testified that Washington did
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not threaten or touch Schooler. Thompson did not see Washington reach into a pocket.
According to Thompson, she did hear Schooler tell Washington to get out of Schooler’s
“f***ing face.” Thompson testified that Schooler made this statement despite the fact that
Washington was not in Schooler’s face, as the two women remained four or five feet
apart. (Id. at 21-22.) With the women still this distance apart, and without any threats from
Washington, Schooler sprayed Washington in the face. (Id. at 23.) Thompson
characterized Schooler’s demeanor as “very angry” and “mad” during the encounter,
while Washington was “calm” prior to being sprayed. (Id. at 24.) On cross-examination,
Thompson acknowledged that prior to the spraying, she repeatedly heard Washington
ask Schooler something like, “Why do you want to start with Keisha.” (Id. at 26.)
{¶ 6} The third witness at trial was Lakeisha Burton, the person known as “Keisha.”
She testified about encountering Schooler outside shortly before the macing incident.
According to Burton, Schooler confronted her and began threatening her and acting
aggressively. Burton eventually “argued back.” (Id. at 32.) Schooler subsequently went
into the office where she sprayed Washington and then left. (Id. at 34.)
{¶ 7} The next witness was Michael Schwartz, a police officer with the city of
Dayton. He testified about responding to the spraying incident and speaking with
Washington at the scene. He noticed a strong odor of mace or pepper spray in the office.
He also observed that Washington’s eyes were swollen and watering. Schwartz also
spoke to Schooler, who went to the police station to make her own complaint. According
to the officer, Schooler told him she had used pepper spray in self-defense because
someone was attempting to assault her. (Id. at 52.) Following Schwartz’s testimony, the
State rested.
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{¶ 8} The first defense witness was Joanne George, an investigator for the public
defender. George testified about speaking to Washington on the phone the previous day.
The prosecutor initially objected to George testifying that Washington admitted having
made comments to Schooler in the apartment office. Defense counsel argued that the
testimony should be allowed since counsel was not permitted to impeach Washington on
the subject due to the prosecutor’s hearsay objection. Ultimately, the prosecutor dropped
the objection to avoid having a potential issue on appeal. (Id. at 60-61.) George then
testified that Washington had admitted getting in Schooler’s face and arguing about why
Schooler wanted to fight Lakeisha Burton. (Id. at 61.)
{¶ 9} The final witness was Schooler. She testified that on the day in question,
several apartment residents were upset and were taunting her outside, in part because
she had been recording their drug activity. Those residents included Lakeisha Burton.
Schooler explained that she went into the office to report the issue to Thompson. Schooler
testified that Burton and others followed her inside, and the others encouraged Burton to
assault Schooler. According to Schooler, Washington then entered the office and got
directly in Schooler’s face as Schooler backed up. (Id. at 71.) Schooler testified that at
one point someone told Washington to cut Schooler’s face. Schooler stated that
Washington responded by reaching into a pants pocket. Fearing for her life, Schooler
stated that she then sprayed Washington in the face. (Id. at 72.) Schooler testified that
there were people everywhere, that she had no way out of the situation, and that she
repeatedly had asked Washington to get out of her face. (Id. at 72-73.)
{¶ 10} Based on the evidence presented, the trial court found Schooler not guilty
of aggravated menacing and not guilty of menacing. The trial court found her guilty of
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misdemeanor assault. It imposed a sentence that included a partially suspended jail term
and credit for time served. The sentence also included a year of probation, a requirement
for a psychological assessment, and a stay-away order.
{¶ 11} In her first assignment of error, Schooler contends she should have been
allowed to impeach Washington’s direct examination testimony about not saying anything
to Schooler inside the office. Specifically, Schooler claims defense counsel should have
been permitted to ask Washington whether Washington told the investigator that she
(Washington) had told Schooler, “No one argues with my sister.” Schooler contends this
inquiry could not have involved hearsay because “Elaine [Washington] is saying what
Elaine [Washington] said.” (Appellant’s brief at 9.)
{¶ 12} Upon review, we are unpersuaded that the testimony sought to be elicited
from Washington could not possibly have been hearsay because she was being asked
about her own out-of-court statement. See, e.g., State v. Grubb, 4th Dist. Lawrence No.
1735, 1985 WL 17460, *3 (Dec. 12, 1985) (recognizing that “a witness' own statements
made to other persons are no exception to the hearsay rule”). Under Evid.R. 801(C),
“hearsay” is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here any
statement concerning what Washington told the investigator she said to Schooler in the
office would be a statement other than one made by the declarant, Washington, while
testifying at trial. What Washington told the investigator she said to Schooler also would
not qualify as non-hearsay under Evid.R. 801(D)(1), because Washington’s statements
to the investigator and to Schooler at the scene were not under oath.
{¶ 13} We doubt, however, that the statement, “No one argues with my sister,” was
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offered to prove the truth of the matter asserted. Defense counsel was not seeking to
prove that no one argues with Lakeisha Burton. Rather, defense counsel was seeking to
prove that Washington spoke to Schooler in the office. The truth of what Washington
allegedly said was immaterial. Defense counsel merely wanted to impeach Washington’s
claim that she did not talk to Schooler in the office by establishing that she did say
something, without regard to the truth of the remark. And, if such a statement had been
admitted, it could only have been used for purposes of impeachment and not as
substantive evidence.
{¶ 14} We need not dwell on the foregoing issue, however, because the trial court’s
resolution of it constituted at most harmless error. As set forth above, office secretary
Thompson testified that she overheard Washington ask Schooler why Schooler was
“messing” with “Keisha.” Thompson proceeded to testify about the two women engaging
in a conversation in the office. Even more significantly, the prosecutor dropped his
objection to investigator George testifying about what Washington had said to her on the
phone the prior day. In substance, this testimony was virtually identical to what defense
counsel sought to elicit from Washington. Under these circumstances, we are firmly
convinced that Schooler was not prejudiced by the trial court’s hearsay ruling.
{¶ 15} Under her first assignment of error, Schooler also claims the trial court erred
in not allowing her to impeach Washington with evidence of a 2011 conviction for abuse
of the 9-1-1 system. Schooler argues that the conviction was admissible under Evid.R.
609(A)(3) because the crime involved dishonesty or a false statement. Schooler reasons
that Washington “presumably” was convicted of violating R.C. 2917.32, which involves
knowingly making or reporting a false alarm or knowingly reporting an offense that did not
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occur.
{¶ 16} While a violation of R.C. 2917.32 necessarily may involve dishonesty or a
false statement, the record reflects that Schooler was convicted of a different offense,
namely “abuse of the 9-1-1 system.” Although defense counsel did not elaborate on this
offense below, abuse of the 9-1-1 system is a violation of a Dayton city ordinance,
R.C.G.O. 137.12. In relevant part, R.C.G.O. 137.12(A) prohibits using or allowing use of
a telephone “for the purpose of calling the emergency 9-1-1 telephone system other than
in an emergency situation.” The trial court correctly recognized that misusing the 9-1-1
telephone system does not necessarily involve dishonesty or a false statement. That
being so, the trial court did not abuse its discretion in refusing to allow Schooler to use
Washington’s conviction in the absence of facts establishing that Washington’s particular
offense involved dishonesty or a false statement. Because Schooler produced no such
evidence, the trial court correctly sustained the State’s objection to Schooler’s use of the
conviction. The first assignment of error is overruled.
{¶ 17} In her second assignment of error, Schooler contends her assault conviction
was against the manifest weight of the evidence. She argues that the weight of the
evidence established that she acted in self-defense. Schooler claims the only contrary
evidence came from Washington, the victim, who lacked credibility.
{¶ 18} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, 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
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ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A
judgment should be reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 19} With the foregoing standards in mind, we conclude that Schooler’s assault
conviction was not against the manifest weight of the evidence. Under R.C. 2903.13(A),
the offense of assault involves knowingly causing or attempting to cause physical harm
to another person. Here Schooler admitted intentionally spraying Washington in the face,
which caused pain to Washington and resulted in her eyes swelling. Based on the record
before us, the trial court certainly could have found that Schooler knowingly caused
physical harm to Washington.
{¶ 20} The only issue was whether Schooler acted in self-defense. Under the
version of R.C. 2901.05 effective March 28, 2019, the State bore the burden to prove
beyond a reasonable doubt that Schooler did not spray Washington in self-defense. “In
Ohio, a defendant is not entitled to a finding of self-defense if (1) the defendant was at
fault in creating the situation giving rise to the affray, (2) the defendant did not have a
bona fide belief that she was in imminent danger of death or great bodily harm and that
her only means of escape from such danger was in the use of such force, or (3) the
defendant violated any duty to retreat or avoid the danger.” (Citations omitted.) State v.
Wallace-Lee, 2d Dist. Greene No. 2019-CA-19, 2020-Ohio-3681, ¶ 39.
{¶ 21} Here the trial court could have found that the foregoing elements were not
satisfied. At a minimum, the trial court reasonably could have found beyond a reasonable
doubt that Schooler lacked a bona fide belief that she was in imminent danger of great
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bodily harm. Contrary to Schooler’s argument, Washington’s testimony was not the only
evidence refuting a finding of self-defense. As set forth above, office secretary Thompson
testified that she witnessed the interaction between Washington and Schooler inside the
office. Thomson recalled that Washington entered the office and asked why Schooler was
“messing” with “Keisha.” Thompson stated that the two women then engaged in
conversation. Thompson testified that the women stayed several feet apart at all times
and that Washington did not threaten Schooler, touch Schooler, or get in Schooler’s face.
Thompson also did not see Washington reach into a pocket for anything. According to
Thompson, Schooler sprayed Washington in the face while the women were several feet
apart and without any preceding threats from Washington. Thompson characterized
Schooler’s demeanor as “very angry” and “mad” during the encounter, while Washington
was “calm” prior to being sprayed. We also note that Thompson’s testimony was at odds
with many aspects of Schooler’s own testimony about what occurred in the office leading
up to the spraying.
{¶ 22} Based on its ruling, the trial court appears to have relied heavily on
Thompson’s testimony in resolving conflicts in the evidence and finding Schooler guilty of
assault. We are mindful that “[b]ecause the factfinder * * * has the opportunity to see and
hear the witnesses, the cautious exercise of the discretionary power of a court of appeals
to find that a judgment is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder's determinations of credibility. The
decision whether, and to what extent, to credit the testimony of particular witnesses is
within the peculiar competence of the factfinder, who has seen and heard the witness.”
Wallace-Lee at ¶ 38. Here the trial court acted well within its discretion in crediting
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Thompson’s testimony, finding no self-defense, and finding Schooler guilty of assault.
Accordingly, the second assignment of error is overruled.
{¶ 23} The judgment of the Dayton Municipal Court is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Andrew D. Sexton
Glenda A. Smith
Hon. Christopher D. Roberts