State v. Gardner

[Cite as State v. Gardner, 2022-Ohio-381.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110606
v. :
GAIL GARDNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-653321-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Michael Timms, Assistant Prosecuting Attorney, for
appellee.
Thomas A. Rein, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Gail Gardner appeals from her conviction of
domestic violence. She was arrested after a physical altercation with her nephew
Million Wheeler, who resided with her in her residence. At the bench trial, Gardner
testified on her own behalf and claimed self-defense. On appeal, she argues her
conviction was not supported by sufficient evidence and was also against the
manifest weight of the evidence. After a review of the trial testimony and applicable
law, we find no merit to the appeal and affirm the trial court’s judgment.
On the day of the incident, Gardner was upset that her nephew did not
inform her that his mother, Gardner’s sister, was in the hospital for a serious medical
emergency. The two started to argue and fought with each other. Wheeler called
911, and the police ultimately arrested Gardner for her conduct in the incident. She
was subsequently charged with felonious assault, a second-degree felony, and
domestic violence, a first-degree misdemeanor.
The matter proceeded to a bench trial. The state produced the
testimony of Wheeler and two police officers who responded to the incident.
Gardner testified on her own behalf. The trial court found Gardner not guilty of
felonious assault but guilty of domestic violence, and sentenced her to time served
for her offense.
Trial Testimony
Wheeler testified that he was on probation for a drug trafficking case in
federal court at the time of the incident. On the day of the incident, his aunt was
very upset when she found out that her sister was in the hospital for a serious illness
but he never informed her of it. She telephoned him to tell him to come home to
pick up his belongings because she wanted him out of her residence. When he
arrived, she asked him what happened with his mother, and he just ignored her. She
became furious. While he gathered his belongings, she started to “bump” him with
her leg and also put her knee in his forehead. At one point, she grabbed him, and he
pushed her, causing her to fall. She got up and hit him in the jaw. She then took his
clothes out of the closet and threw them out the front door. After that, she attacked
him again. He tried to restrain her without “doing extra damage” because he was on
probation; he grabbed her arms and shoulder while she grabbed him and scratched
him. He tried to restrain her, putting his hands in her neck area. Wheeler testified
that he was in a “state of trauma” because he had to fight his aunt off without hurting
her.
Wheeler further testified that, after the struggle, Gardner went into her
room and came out with a metal bat, a “Louisville Slugger,” and hit him in his rib
cage. He grabbed the bat, and the two “tussled” over the bat. When he got hold of
the bat and dropped it, she went into the kitchen and grabbed a butcher knife and
threatened him with the knife. She dropped the knife, however, and told him she
was going to call his probation officer. At that point, Wheeler stepped outside the
house and called 911.
After calling 911, Wheeler went to the kitchen to gather his items there.
Gardner came in and grabbed the spice jars from his hand and threw them at him.
When he tried to retrieve salad dressings from the refrigerator, she smacked him in
the head with the refrigerator door. When the police officers arrived, he turned
around and walked toward the officers. Gardner threw an item at him, which is
captured in an officer’s body camera. Wheeler testified that the officers initially put
him in handcuffs but took them off after he gave an account of the incident.
Officers Wanda Wright and Jonathan Selleny, who were among the
officers responding to the domestic violence incident, testified as well. The two
officers arrived at Gardner’s residence and witnessed Gardner throwing objects at
Wheeler’s head, which was captured in Officer Selleny’s body camera. Wheeler
informed Officer Wright that he was hit with a bat, which Wright located in
Gardner’s bedroom. Officers Wright and Selleny talked to Gardner while the other
officers also at the scene talked to Wheeler, who indicated he was defending himself
during the altercation. Officer Selleny testified that, based on Gardner’s and
Wheeler’s statements, the officers determined Wheeler’s injuries were sustained
from trying to defend himself. They determined Gardner was the primary aggressor
and placed her under arrest for domestic violence.
Sergeant Newton, who did not testify, took several photographs of
Wheeler. The trial court admitted the photographs, which depicted what appeared
to be scratch marks on Wheeler’s body, over the objection from the defense on the
ground that the photographs were not properly authenticated. In addition to the
photographs, an audio tape of Wheeler’s 911 call to the police and Officer Selleny’s
body camera were played at the trial.
After the state presented its case-in-chief, the defense moved for an
acquittal pursuant to Crim.R. 29, arguing that the altercation was a mutual combat
and Gardner was protecting herself and that Wheeler’s 911 call and the allegation
was a calculated move to avoid a violation of his probation. The prosecutor argued
that Gardner’s conduct, including throwing an object at Wheeler when his back was
turned, did not reflect self-defense. The trial court denied the Crim.R. 29 motion.
Gardner then testified on her own behalf. She was angry with her
nephew Wheeler because she found out her sister was seriously ill at the hospital yet
Wheeler, who was living with her at the time, never told her about it. She called him
to tell him to move out of her residence. While he was in the house gathering his
belongings, she followed him around asking him questions about his mother.
Because he ignored her, she argued with him “in his face.”
Gardner testified that, at one point, he pushed her and she fell. She
got up and got “in his face” again, and he knocked her down again. She was very
upset he put his hands on her and also felt scared. To protect herself, she grabbed a
metal bat and “raised up the bat to” Wheeler. She did not hit him with the bat
however, and, while she hesitated, Wheeler grabbed the bat and was “slinging [her]
around the room with the bat” because she would not let go of the bat. He finally
took the bat from her, and the next thing she knew, she was against a wall and he
had his hands round her neck, “choking [her] out.” Realizing she was losing the
fight, she started to gather his belongings and threw them out the door. Because
Wheeler pushed her down twice and “choked [her] out,” she called 911 too. She
steadfastly maintained that she did not hit her nephew with the bat. Her 911 call
was not submitted as evidence.
During the cross-examination of Gardner, the prosecution played a
segment of Officer Selleny’s body camera where Gardner can be heard saying to the
officer, “I tried to punch his ass” and “[n]ext time he puts his hands on [me] he’s
going to be a dead black man and [I’m] going to be in jail.” She, however, testified
that she tried to punch Wheeler to protect herself and make sure she did not get
hurt.
At the closing argument, the prosecutor argued that the evidence did
not reflect that Gardner acted in self-defense. The defense argued that Gardner
repeatedly testified that she had to protect herself and that Wheeler calling the police
was merely an attempt to be considered the victim in the altercation in order to avoid
a violation of his probation. The defense also argued it was Wheeler, not Gardner,
who created the situation leading to the altercation and that Gardner was using
reasonable force to protect herself.
Verdict and Appeal
After the trial, the trial court rendered a verdict from the bench
and also issued a written decision. Gardner was found not guilty of felonious
assault. The trial court found the state failed to prove beyond a reasonable doubt
that Gardner caused or attempted to cause physical injury with a deadly weapon.
The trial court noted that while Wheeler testified Gardner hit him with a bat,
Gardner testified Wheeler grabbed the bat from her. The trial court also noted that
the scratching depicted in the photographs were inconsistent with an injury caused
by a bat.
However, the trial court found the state proved its charge of domestic
violence beyond a reasonable doubt. The trial court noted that while the testimony
of both Gardner and Wheeler indicated Wheeler pushed Gardner and she fell to the
ground and he also grabbed her near the throat, Wheeler’s testimony indicated these
were defensive moves done in an attempt to restrain Gardner. The trial court also
noted that the testimony of both parties reflected that Gardner was the initial
aggressor. Finally, the trial court noted that, consistent with the testimony, there
was a scratch on Wheeler that was visible in the photographs taken by the police at
the scene.
On appeal, Gardner raises the following assignments of error:
I. The trial court erred by failing to grant a judgment of acquittal,
pursuant to Crim.R. 29(a), on the charge, and thereafter entering a
judgment of conviction of that offense as that charge was not
supported by sufficient evidence, in violation of defendant’s right to
due process, as guaranteed by the Fourteenth Amendment to the
United States Constitution.
II. Appellant’s conviction is against the manifest weight of the
evidence.
III. The trial court erred by ordering Appellant to pay costs in the
sentencing journal entry when it stated nothing about court costs on
the record.
For ease of discussion, we address the first and second assignments of error
together.
Standard of Review
When reviewing a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “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.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
While the test for sufficiency requires a determination of whether the
state has met its burden of production at trial, a manifest-weight challenge questions
whether the state has met its burden of persuasion. Id. Unlike a claim that the
evidence is insufficient to support a conviction, which raises a question of law,
manifest-weight challenges raise factual issues. When a defendant argues his or her
conviction is against the manifest weight of the evidence, the court,
“reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the
conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
Self-Defense
In this case, Gardner was convicted of domestic violence under
R.C. 2919.25(A), which provides that “[n]o person shall knowingly cause or attempt
to cause physical harm to a family or household member.” It is undisputed the state
produced sufficient evidence establishing all of the elements of domestic violence.
Gardner, however, claims her conviction should be reversed because she acted in
self-defense during the altercation.
To prove self-defense, a defendant must prove by a preponderance of
the evidence that (1) she was “not at fault in creating the situation giving rise to the
affray”; (2) she had a “bona fide belief that she was in imminent danger of death or
great bodily harm” and that her only means of escape was in the use of force; and
(3) she had not “violated any duty to retreat or avoid danger.” State v. Williford, 49
Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990).
Self-defense may be asserted as a defense to a charge of domestic
violence. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535,
¶ 28. Self-defense is an affirmative defense, and therefore, “a defendant claiming
self-defense does not seek to negate an element of the offense but rather seeks to
relieve himself from liability.” Cleveland v. Williams, 8th Dist. Cuyahoga No. 81369,
2003-Ohio-31, ¶ 10, citing State v. Martin, 21 Ohio St.3d 91, 488 N.E.2d 166 (1986).
A defendant claiming self-defense admits the facts claimed by the prosecution and
then relies on independent facts or circumstances to exempt her from liability. State
v. Latessa, 11th Dist. Lake No. 2006-L-108, 2007-Ohio-3373, ¶ 51, citing Martin at
94.
Therefore, “[a] defendant’s assertion on appeal that he has proven
self-defense cannot be a sufficiency claim, but rather, must be reviewed under the
standard for a manifest weight claim.” Williams at ¶ 10, citing State v. Roberts, 139
Ohio App.3d 757, 768, 745 N.E.2d 1057 (1st Dist.2000). Therefore, we consider
Gardner’s claim that her guilty verdict should be reversed under a manifest-weight
review.
We first note that, prior to March 28, 2019, the self-defense statute,
R.C. 2901.05, required a defendant claiming self-defense to prove it by a
preponderance of the evidence. On March 28, 2019, the statute was amended to
shift the burden of proof to the state and it now requires the state to prove beyond a
reasonable doubt that the accused did not use the force in self-defense, if the
evidence presented at trial tends to support a self-defense claim.
R.C. 2901.05(B)(1).1
1 R.C. 2901.05(B)(1) states:
A person is allowed to act in self-defense, defense of another, or defense of
that person’s residence. If, at the trial of a person who is accused of an
offense that involved the person’s use of force against another, there is
evidence presented that tends to support that the accused person used the
force in self-defense, defense of another, or defense of that person’s
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another, or
defense of that person’s residence, as the case may be.
Since the amendment of the statute, it has been settled that, because
of the cumulative nature of the elements of self-defense, “the state need only
disprove one of the elements of self-defense beyond a reasonable doubt at trial.”
State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037, ¶ 13. See also
State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 46 (8th Dist.); State v. Smith,
1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 49; State v. Petway, 2020-
Ohio-3848, 156 N.E.3d 467, ¶ 55 (11th Dist.); State v. Carney, 10th Dist. Franklin
No. 19AP-402, 2020-Ohio-2691, ¶ 31; and State v. Nestingen, 5th Dist. Richland No.
2019 CA 110, 2020-Ohio-2965, ¶ 17.
The first prong of the self-defense test — whether the defendant was
at fault in creating the situation giving rise to the affray — asks, in essence, whether
the defendant was the initial aggressor. State v. Batie, 8th Dist. Cuyahoga
No. 101234, 2015-Ohio-762, ¶ 8. Here, Wheeler testified Gardner was enraged
when he ignored her inquiry about his mother’s condition and started to “bump”
him and, at one point, grabbed him. He tried to restrain her by pushing her, causing
her to fall, and when she got up, she hit him in the jaw. While they struggled with
each other, she grabbed him and scratched him. A scratch mark was visible in the
photographs taken by the police at the scene. Gardner admitted she followed
Wheeler around while he gathered his belongings and was “in his face.” The trial
court found Gardner to be the initial aggressor; in other words, she was at fault at
creating the incident leading to the affray.
“Self-defense claims are generally an issue of credibility.” Walker at
¶ 13. “Whether the state disproves any of the elements of self-defense is left to the
trier of fact to decide.” State v. Davidson-Dixon, 2021-Ohio-1485, 170 N.E.3d 557,
¶ 36 (8th Dist.), citing State v. Morton, 147 Ohio App.3d 43, 2002-Ohio-813, 768
N.E.2d 730, ¶ 52 (8th Dist.). Having carefully reviewed the entirety of the evidence
presented at trial, we cannot say the trier of fact lost its way or created a manifest
miscarriage of justice in finding Gardner guilty of domestic violence despite her
claim of self-defense. The first and second assignments of error are without merit.
Court Costs
Under the third assignment of error, Gardner maintains the trial
court erred in imposing the costs of prosecution in its sentencing entry when it was
silent about court costs at the sentencing hearing. She argues that the trial court’s
order of court costs should be vacated.
In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d
1028, the trial court imposed court costs in its sentencing entry without mentioning
costs at the sentencing hearing. However, because R.C. 2947.23 now allows the trial
court to exercise jurisdiction to waive, suspend, or modify the payment of the costs
of prosecution at the time of sentencing or any time thereafter, the Supreme Court
of Ohio concluded that the defendant could file a motion to waive costs without a
remand to the trial court, citing R.C. 2947.23(C). Beasley at ¶ 265. Pursuant to
Beasley, Gardner can file a motion to waive court costs in the trial court at any time
and a remand of this matter on the issue of court costs is not necessary. State v.
Reed, 8th Dist. Cuyahoga No. 106796, 2018-Ohio-3187, ¶ 12 (this court need not
remand the matter to the trial court in order for appellant to obtain an order waiving
court costs — appellant can file a motion to waive court costs in the trial court at any
time). See also State v. West, 8th Dist. Cuyahoga No. 105568, 2018-Ohio-956. The
third assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover of appellant 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
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR