State v. Nestingen
2020 Ohio 2965
Ohio Ct. App.2020Background
- Defendant Serene Nestingen was charged with misdemeanor assault after pushing Akira Garrison off her porch during a dispute over a stray cat. The victim suffered minor injuries (scratch, redness, broken fingernail).
- Bench trial in Mansfield Municipal Court resulted in a conviction and a 90-day jail sentence suspended in favor of one year of probation; Nestingen appealed.
- Nestingen asserted self-defense/defense of her residence (R.C. 2901.05) — claiming Garrison forced the door, entered a few feet with a clenched/raised fist, and advanced toward her.
- Prosecution presented witnesses (victim, neighbors, officer, deputy dog warden) who testified Garrison knocked, did not unlawfully enter, and was pushed off the porch; officer observed marks and a broken fingernail.
- Relevant statutory change (R.C. 2901.05(B)(1), effective March 28, 2019) places on the prosecution the burden to disprove self-defense beyond a reasonable doubt when the defendant presents evidence tending to support it.
- Trial court found the state rebutted self-defense, credited the victim’s account that Nestingen escalated the encounter and used unnecessary force; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency / Crim.R. 29 — did prosecution disprove self-defense under R.C. 2901.05(B)(1)? | State: evidence showed Nestingen escalated the dispute and used unnecessary force, so it disproved at least one self-defense element beyond a reasonable doubt. | Nestingen: trial evidence supported self-defense/defense of residence; Crim.R.29 acquittal warranted. | Court: Denied Crim.R.29; sufficient evidence existed to disprove self-defense and support assault conviction. |
| Presumption of self-defense for unlawful entry (R.C. 2901.05(B)(2)) — did victim cross threshold to trigger the presumption? | State: even if entry occurred, evidence rebutted any presumption because defendant escalated the affray. | Nestingen: argued threshold entry would create a presumption of self-defense. | Court: Rebuttable presumption was overcome by evidence that defendant escalated the conflict; no presumption entitlement. |
| Manifest weight — was trial court’s credibility finding and conclusion that force was unnecessary against the manifest weight of the evidence? | State: witness testimony and injuries supported finding that force was unnecessary and that defendant instigated escalation. | Nestingen: claimed she used only necessary force to expel an intruder and stopped after removing the person from the porch. | Court: Affirmed trial court credibility determinations; no manifest miscarriage of justice. |
Key Cases Cited
- State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978) (standard for Crim.R. 29 sufficiency review)
- State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) (sufficiency standard follows Jackson v. Virginia)
- Jackson v. Virginia, 443 U.S. 307 (1979) (rational trier of fact standard for proof beyond a reasonable doubt)
- State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990) (credibility and weight of evidence are for the trier of fact)
- Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997) (trial court best positioned to assess witness demeanor and credibility)
- State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist. 1983) (manifest-weight standard; new trial extraordinary relief)
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997) (clarifies manifest-weight review)