STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMI K. FLORY, DEFENDANT-APPELLANT.
CASE NO. 15-20-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY
November 2, 2020
2020-Ohio-5136
Appeal from Van Wert Municipal Court, Trial Court No. CRB 1900461. Judgment Reversed and Cause Remanded.
Thomas J. Lucente, Jr. for Appellant
John E. Hatcher for Appellee
{¶1} Defendant-appellant, Jami K. Flory (“Flory“), brings this appeal from the January 21, 2020 judgment of the Van Wert Municipal Court sentencing Flory to serve 30 days in jail, with 27 days suspended, after a jury convicted her of Domestic Violence in violation of
Background
{¶2} On September 3, 2019, Flory was charged with Domestic Violence perpetrated against her boyfriend, Eric B., in violation of
{¶3} Prior to the commencement of trial, Flory filed a request to include a jury instruction “regarding Self-Defense and the state‘s burden to prove beyond a reasonable doubt that the defendant did not act in self-defense[.]” (Doc. No. 33). Flory argued that on March 28, 2019, a new version of
{¶4} Flory‘s jury trial was held January 17, 2020. At the inception of the trial, the trial court indicated that it would provide an instruction on self-defense under the new provision of the revised code.
{¶5} During the trial, the State presented the testimony of Eric B., Flory‘s live-in boyfriend. Eric and Flory had been in a relationship for approximately three years and according to Eric‘s testimony they had lived together for two or three years. However, the relationship was, at times, tumultuous resulting in serious arguments.
{¶6} On September 1, 2019, Eric told Flory that he was going to go to the fair with his parents and his daughter.1 Eric originally invited Flory and her son to go to the fair with Eric‘s family, but subsequently Eric told Flory that she could not go with Eric‘s family to the fair because Eric‘s family did not want her around due to Eric‘s and Flory‘s ongoing relationship issues. Eric then had a couple of shots of alcohol and went to the fair. When he returned a few hours later, he testified that Flory was unhappy because she was not included. Eric testified that he took a nap for about two hours and when he got up, Flory was severely intoxicated and angry.
{¶8} Eric told Jennifer that they should leave the residence, so he grabbed some of his things. Jennifer went outside ahead of him with her children to get them into the van. Eric testified that when he got to the doorway of the residence, Flory blocked his path. Eric stated that he attempted to reach around Flory but his hand went through a glass panel, noting that there were nine or ten glass panels in the door. Eric was not sure how his hand went through the glass panel, stating he did not intentionally punch the panel and that Flory might have knocked his hand to the side as he reached for the door. Regardless, Eric‘s hand was cut and bleeding significantly so he went to wash off the blood.
{¶10} Jennifer testified that from where she was standing she could see Flory strike Eric multiple times in the knee, but she did not see Flory kick Eric in the groin. Subsequently Eric was able to get up and get out of the house, and at that time Jennifer took him to the hospital, where Eric had twenty-five stitches put in his hand/arm as a result of the cut from the glass. Eric maintained that he did not strike Flory at any time during the encounter and that he did not pull her hair. He did acknowledge on cross-examination that he had previously been charged with felony domestic violence in an unrelated incident but the charge was reduced to an assault. Eric had spent time in jail for the conviction and was released in the months prior to this incident.
{¶11} Meanwhile, as Eric was taken to the hospital, Flory went to her next-door neighbor‘s residence and banged on the door yelling for help. A woman at the neighbor‘s residence called 9-1-1 reporting a bloody woman who needed assistance. Officers from the Van Wert City Police Department were dispatched for an
{¶12} Officer Blackmore was the first officer on the scene and he went to the residence of the neighbor who had called 9-1-1. He was told that Flory had gone back to her own residence. Officer Blackmore noted broken glass and blood outside the door of Flory‘s residence and informed Sergeant Dershem when she arrived. The officers then initiated contact with Flory.
{¶13} The officers noted that Flory had a strong odor of an alcoholic beverage on her person, that her eyes were very bloodshot, and that she was very uncooperative. Officer Blackmore described Flory as belligerent. Officer Blackmore further testified that although he could not tell if the blood on Flory was hers, it looked to be dry and smeared.
{¶14} The officers testified that they attempted to determine if Flory needed any assistance from either medical personnel or police but Flory maintained that she did not need help and she just wanted law enforcement to leave. She stated she did not call law enforcement and that nothing had happened. Flory told officers that she tripped over a fan. Flory also stated that she had an argument with her live-in boyfriend but he left; however, she later changed the story she gave to the officers and said that the argument with her boyfriend had actually been over the phone.
{¶16} With Flory‘s lack of cooperation, and her insistence that nothing had happened, officers left and returned to the station. Shortly thereafter, they were notified by different emergency services personnel that Eric was in the hospital and that his injuries could possibly be related to the incident they had just investigated. Sergeant Dershem and Officer Blackmore went to the hospital. Sergeant Dershem spoke with Jennifer while Officer Blackmore spoke separately with Eric. Eric and Jennifer related consistent stories as to what happened at the residence and the officers concluded that Flory was the primary aggressor. Eric signed a domestic violence complaint form (using his left hand because he could not write with his right hand). Officer Blackmore testified that during his interaction with Eric, Eric was calm and courteous and that Eric did not appear intoxicated though Eric did
{¶17} Sergeant Dershem and Officer Blackmore then returned to Flory‘s residence and arrested her for Domestic Violence due to the groin kick and the kneecap punches. Officer Blackmore noted that Flory still appeared intoxicated but she had calmed down from their prior interaction. No charges were filed related to the injury to Eric‘s hand, which Officer Blackmore described as self-inflicted. Photographs were taken of the scene and introduced into evidence.
{¶18} Flory also took a portable breath test and her BAC registered at .144. Flory was transported to jail, where she had a seizure, or what looked to be a seizure to the jail staff. Flory was then taken to the hospital to get her medically cleared for incarceration, and she later returned to jail.
{¶19} In her defense, Flory presented the testimony of her neighbor, Alexa, who testified that at the time of the incident she knew Eric and Flory, but not well. Alexa testified that her residence shared a wall with Flory‘s and that on the night of the incident she heard arguing. She testified that she had heard Eric and Flory arguing in the past but this was the first time in a while.
{¶20} Alexa testified that at one point she heard a loud crash, like something being hit or thrown. According to Alexa, shortly thereafter Flory came over to her house and started pounding on the door saying that Alexa needed to let her in. Alexa
{¶21} Flory told Alexa that Eric was trying to get inside and hurt her and Flory asked Alexa to call the police. Alexa testified that Flory was also screaming her son‘s name but Alexa did not know why because Flory‘s son had not been home as far as Alexa knew. Alexa testified that Flory then “like passed out almost, she was like not talking or anything for a little bit and then all of a sudden she shot up and told us not to call the police because she didn‘t want him getting in trouble.” (Tr. at 176). However, Alexa had a friend over at the time who had already called the police.
{¶22} Alexa testified that when police first arrived Flory was at Alexa‘s residence but Flory immediately ran into her own apartment. Alexa spoke with police and then police went to Flory‘s residence.
{¶23} Alexa testified that a few days after the incident, when Flory got out of jail, Flory asked Alexa to check her house with her because Flory was scared of what might be inside. Alexa also took some photographs of Flory at that time that showed bruising on Flory‘s elbows and her arms, a cut on her heel, and hair missing from her head.
{¶25} Flory provided testimony on her own behalf. She testified that at the time of the incident she was trying to maintain a relationship with Eric but he was “out gallivanting” with other people. (Tr. at 199). Flory testified that Eric had four shots of alcohol before going to the fair. According to Flory, Eric then went to the fair and came back and drank more alcohol. Flory testified that Eric then took a nap, at which time she took a picture of him drunk and napping and sent the picture to Eric‘s mother. Flory testified that when Eric got up from his nap he slapped her in the face for sending the picture.
{¶26} Flory testified that Eric left for a while and went to Jennifer‘s house, then Eric and Jennifer came back together with Jennifer‘s children. Flory testified that an argument started with Jennifer and then Flory told them all to get out. Flory testified that Jennifer walked out with her son and Eric walked out as well. She then testified,
Next thing I know, I‘m still standing there at the kitchen counter, smoking a cigarette, and that window gets shattered and he comes throwing in there. I instantly asked him, I said, are you OK? Do you need some help as he‘s running to the bathroom, turns the shower on, runs, throws his arm underneath the shower, grabs a towel and I‘m asking him, do you need help? He instantly, I‘m everything but a white woman. Comes rushing at me. Like it was
my fault that he broke the glass. It was my fault that he hurt his hand.
(Tr. at 209-210).
{¶27} Flory testified that Eric called her degrading names and was trying to clean himself up. She testified that afterward Eric blamed her for the injury to his hand and that he tackled her in the middle room off of the kitchen. She testified that Eric pinned her down on the carpet and pulled her hair. She testified that she then kicked Eric twice to get her off of him, then she climbed over her couch, went out the front door and went to Alexa‘s residence.
{¶28} Flory testified she originally wanted to call the police because she was scared but then decided she did not want to because it might be even worse for her. She testified she had been abused in multiple relationships. She testified that Eric had abused her on previous occasions, and that she had seizures in high stress situations, though she was now on medication.
{¶29} On cross-examination Flory testified that both she and Eric had been drinking on the date of the incident, having gone through “a fifth” together. (Tr. at 225). She claimed that she did not say anything to the police about self-defense or Eric being the primary aggressor when police came to her residence because she was loyal. She also testified that her hair did not fall out until she got to the jail, but maintained that Eric had pulled her hair during the encounter.
Assignment of Error No. 1
Appellant‘s conviction for domestic violence was against the manifest weight of the evidence and is contrary to law.
Assignment of Error No. 2
The trial court erred in denying appellant‘s motion for acquittal at the close of the state‘s case in chief, where there was legally insufficient evidence to establish each material element of the offense beyond a reasonable doubt.
{¶31} We elect to address the assignments of error out of the order in which they were raised.
Second Assignment of Error
{¶32} In her second assignment of error, Flory argues that the trial court should have granted her
{¶33} An appellate court reviews the denial of a
{¶34} In this case Flory was convicted of Domestic Violence in violation of
A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
Analysis
{¶35} Flory claims that the trial court erred by denying her
{¶36} Moreover, Flory argues that she was acting in self-defense, and that Eric‘s testimony should not be believed, but those are really questions for weight of the evidence rather than sufficiency. Under a sufficiency review, we look at the evidence in the light most favorable to the State. State v. Jackson, 3d Dist. Seneca No. 13-18-18, 2019-Ohio-170, ¶ 9, citing Jenks, supra. With that standard in mind, the State presented sufficient evidence to establish the element of “knowingly” here as it is reasonable to assume that when Flory kicked Eric in the groin and punched him in the knee she was aware that it would probably cause physical harm.
{¶37} Moreover, under a sufficiency review, and looking at the evidence in the light most favorable to the State, the State presented sufficient evidence to establish beyond a reasonable doubt that Flory was not acting in self-defense as she claimed. There was testimony that Flory was the aggressor and significant testimony challenging Flory‘s credibility. Based on the evidence presented by the State we cannot find that the trial court erred by overruling Flory‘s
First Assignment of Error
{¶38} In her first assignment of error, Flory argues that even if there was sufficient evidence presented to convict her of Domestic Violence, her conviction was against the manifest weight of the evidence. Specifically, she contends that Eric had previously been indicted on a charge of felony domestic violence that was reduced to an assault, that Eric had gotten out of jail for that conviction in the months before this incident occurred, and that Flory was the one injured and seeking help according to her own testimony and the testimony of her neighbor. Further, Flory argues that the issue of the primary aggressor was compounded in this case by the trial court giving conflicting, confusing, and unlawful jury instructions on the burden of proof related to self-defense.
Standard of Review
{¶39} In reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
Analysis
{¶40} The testimony in this case largely rests on credibility of the witnesses, which is a province for the jury. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). The jury in this case was given different versions of an event that occurred on September 1, 2019, and they elected to believe the story told by Eric and Jennifer, rather than the story told by Flory.
{¶41} However, before we make a determination regarding the weight of the evidence, we must address a separate argument made by Flory in her brief, which is dispositive of this matter. Flory emphasizes on appeal that her claim of self-defense was not properly evaluated by the jury because the jury was given improper, unlawful, and conflicting instructions on self-defense. Flory does not set out the “jury instruction” issue as its own assignment of error, which is a practice we discourage and could ordinarily result in us disregarding the argument. See
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.
{¶43} Under the current version of
{¶45} Pursuant to both the written version of the instructions in the record, and the corresponding verbal instructions that were given to the jury in the transcript, the jury was initially supplied the correct standard for evaluating self-defense under the current
SELF-DEFENSE. The defendant claims to have acted in self-defense. The defendant is allowed to use non-deadly force in self-defense. Evidence was presented that tends to support a finding that the defendant used non-deadly force in self-defense. In order to prove that the defendant did not act in self-defense, the state must prove beyond a reasonable doubt at least one of the following:
(A) The defendant was at fault in creating the situation giving rise to the Defendant kicking ERIC B[.] in the groin and punching him in the knee several times; or
(B) The defendant did not have reasonable grounds to believe and an honest belief, even if mistaken, that she was in imminent or immediate danger of harm.
NON-DEADLY FORCE. “Non-deadly force” means any force that does not carry with it a substantial risk that it will proximately result in the death of a person.
SUBSTANTIAL RISK. “Substantial risk” means a strong possibility as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist
AT FAULT. A defendant did not act in self-defense if the state proved beyond a reasonable doubt that the defendant was at fault in creating the situation that resulted in the injury. The defendant was at fault when the defendant was the initial aggressor and did not provoke ERIC B[.] into using force.
TEST FOR REASONABLENESS. In deciding whether the defendant had reasonable grounds to believe and an honest belief that she was in imminent or immediate danger of bodily harm, you must put yourself in the position of the defendant, with her characteristics, her knowledge or lack of knowledge, and under the circumstances and conditions that surrounded her at the time. You must consider the conduct of ERIC B[.] and decide whether his acts and words caused the defendant to reasonably and honestly believe that the defendant was about to receive bodily harm.
WORDS. Words alone do not justify the use of force. Resort to force is not justified by abusive language, verbal threats, or other words, no matter how provocative.
(Doc. No. 31).
{¶46} Unfortunately, the jury instructions continue from this point in a manner that is not consistent with the current version of
BURDEN. The burden of going forward with the evidence of SELF DEFENSE and the burden of proving this defense are upon the defendant. She must establish such a defense by a preponderance of the evidence.
(Id.) (Emphasis added.)
{¶47} This issue is compounded by the next four paragraphs reiterating that the defendant had a burden in this matter by a preponderance of the evidence, emphasizing this burden in various ways.
PREPONDERANCE OF THE EVIDENCE is the greater weight of the evidence; that is, evidence that you believe because it outweighs or overbalances in your minds the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may or may not be identical with quantity or the greater number of witnesses.
CONSIDER ALL EVIDENCE. In determining whether or not an affirmative defense has been proven by a preponderance of the evidence, you should consider all the evidence bearing upon that affirmative defense regardless of who produced it.
EQUALLY BALANCED. If the weight of the evidence is equally balanced or if you are unable to determine which side of an affirmative defense has the preponderance, then the defendant has not established such affirmative defense.
EFFECT OF FAILURE. If the defendant fails to establish the defense of SELF DEFENSE, the state still must prove to you beyond a reasonable doubt all the elements of the crime charged.
(Emphasis added.)
If you find that the state proved beyond a reasonable doubt all the essential elements of the offense of DOMESTIC VIOLENCE ASSAULT and proved beyond a reasonable doubt that the defendant did not act in SELF DEFENSE, your verdict must be guilty.
If you find that the state failed to prove beyond a reasonable doubt any one of the essential elements of the offense of DOMESTIC VIOLENCE ASSAULT or if you find the state failed to prove beyond a reasonable doubt that the defendant did not act in SELF DEFENSE, then you must find the defendant not guilty.
(Emphasis added.) (Id.)
{¶49} Based on the foregoing, it is clear that the jury was left with confusing and contradictory instructions regarding the burden of self-defense, all of which was apparently overlooked by court and counsel. Nevertheless, it is important to emphasize that despite Flory initially requesting that proper jury instructions be given regarding self-defense, she did not object at trial to the jury instructions when they were given. Thus we must proceed on a plain error analysis. See, e.g., State v. Maine, 4th Dist. Washington No. 04CA46, 2005-Ohio-3742, ¶ 10, citing State v. Willford, 49 Ohio St.3d 247 (1990).
{¶50} Under
{¶51} Importantly, regarding jury instructions specifically, “[a] trial court‘s instructions to a jury must correctly, clearly, and completely state the law applicable to the case.” State v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10 (3d Dist.), citing State v. Thomas, 170 Ohio App.3d 727, 2007-Ohio-1344, 868 N.E.2d 1061, ¶ 15 (2d Dist.). Additionally, when an appellate court reviews jury instructions, it must examine the specific charge at issue in the context of the entire charge, and not in isolation. State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407 (1987).
{¶53} As we previously concluded regarding the sufficiency of the evidence in this case, a properly instructed jury could have evaluated the evidence and determined that the State had proven beyond a reasonable doubt that Flory was not
{¶54} Under the current law, the State has to disprove self-defense beyond a reasonable doubt. The jury here was given that instruction, but was also given a conflicting instruction, clearly stating in several instances that Flory had to establish self-defense by a preponderance of the evidence. This is an incorrect statement of the law and could be misleading for the jury. For example, the jury could have found that Flory‘s failure to prove self-defense by a preponderance of the evidence automatically established that the State negated self-defense beyond a reasonable doubt without further consideration.
{¶55} In sum, since the jury was given an incorrect and contradictory instruction that was not in compliance with the current law, we are unable to properly address or review the weight of the evidence argument raised under the first assignment of error. Instead, we are compelled to find that under the particular facts and circumstances of this case, Flory‘s first assignment of error must be sustained but only as to the issue of the improper jury instruction. We emphasize that we are not sustaining the assignment of error as to the weight of the evidence; rather, we are finding that the conviction must be reversed and remanded for a new
Conclusion
{¶56} For the foregoing reasons Flory‘s second assignment of error is overruled, and her first assignment of error is sustained only as to the jury instruction issue. This cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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