State v. McManawayState v. McManaway
HENSAL, Judge.
{1} Kameron McManaway appeals her conviction from the Wayne County Municipal Court. This Court affirms.
I.
{2} Ms. McManaway was charged with two counts of endangering children and one count of domestic violence stemming from an incident that occurred on July 1, 2020. Ms. McManaway pleaded not guilty, and the matter proceeded to a jury trial. The following facts were adduced at trial.
{3} While the version of events differed between Ms. McManaway and the victim at trial, the following facts were not in dispute. On the date of the incident, Ms. McManaway and the victim had been dating for about four months. Ms. McManaway and the victim lived together in Ms. McManaway‘s house. They shared household duties, including cleaning, preparing meals, and taking care of Ms. McManaway‘s two young children.
{5} After she left the hospital, Ms. McManaway met up with her former boyfriend at a park. After spending time with her former boyfriend, Ms. McManaway went to her mother‘s house, where the victim was waiting for her. The victim, Ms. McManaway, and her two children then got into the victim‘s car and the victim started driving. Ms. McManaway was in the passenger‘s seat, and her children were in the backseat. What happened next varied between the victim and Ms. McManaway.
{6} According to the victim, he asked to see McManaway‘s phone, which he had purchased for her. Ms. McManaway gave the victim her phone, and he confirmed that Ms. McManaway had been in contact with her former boyfriend. He then told her he was done with their relationship and asked her to pack his things and leave them outside her house so he could pick them up. Ms. McManaway then punched him in his eye and bit his arm. The victim could not recall, however, whether the punch or bite occurred first. The victim testified that he missed two days of work as a result of the injury to his eye, and that the bite hurt for a day. The State presented photographs of the victim‘s injuries, which showed a red, swollen right eye, and a bite mark on the victim‘s arm.
{7} After punching and biting the victim, Ms. McManaway tried to pull the key out of the ignition while the victim was driving, so he grabbed her wrist. While still driving, the victim called 911. During the course of the call, the victim parked in a parking lot and waited for the police to arrive. At that time, Ms. McManaway exited the car, retrieved her children from the backseat, and called her mom.
{9} On cross-examination, Ms. McManaway admitted that she never told the police at the scene that she tried to exit the car and that the victim pulled her back in. Additionally, she acknowledged that she apologized to the victim after the incident because she realized she should not have smacked him in response to him yelling at her.
{10} The jury found Ms. McManaway not guilty of endangering children, but guilty of domestic violence. She now appeals, raising four assignments of error for this Court‘s review.
II
ASSIGNMENT OF ERROR I
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY VERDICT OF GUILTY.
{11} In her first assignment of error, Ms. McManaway argues that the State failed to present sufficient evidence to establish that she committed domestic violence because the State failed to prove that she and the victim “resid[ed]” together. For the reasons that follow, this Court disagrees.
{12} Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this
{13}
[p]ossible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.
Id. at 465. The Ohio Supreme Court later clarified that the sharing of familial or financial responsibilities is not required when there is evidence that the victim and the offender lived together. State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, ¶ 13. As this Court has stated, “[t]he burden of [production for] establishing cohabitation is not substantial.” (Alteration sic.) State v. Long, 9th Dist. Summit No. 25249, 2011-Ohio-1050, ¶ 6, quoting Dyke v. Price, 2d Dist. Montgomery No. 18060, 2000 WL 1546555, *3 (Oct. 20, 2000). “[I]t is a person‘s determination
{14} As previously noted, Ms. McManaway argues that the State failed to present sufficient evidence to establish that she committed domestic violence because the State failed to prove that she and the victim “resid[ed]” together. She asserts that “reside” means “to live at a place on an ongoing basis[,]” and that there was no evidence that the victim was going to be living with her in the future.
{15} Despite Ms. McManaway‘s reliance on the term “reside[,]” this Court‘s focus is on the language and definitions set forth in
ASSIGNMENT OF ERROR II
APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{16} In her second assignment of error, Ms. McManaway argues that her conviction was against the manifest weight of the evidence. This Court disagrees.
{18} In support of her argument that her conviction was against the manifest weight of the evidence, Ms. McManaway essentially argues that she acted reasonably under the circumstances. She argues that she “did not know what else to do” since the victim was preventing her from exiting the car, screaming at her and her children, and grabbing her wrist. Ms. McManaway‘s argument, however, relies on her version of the events, which the jury was not required to believe. State v. Straughan, 9th Dist. Summit No. 29549, 2021-Ohio-1054, ¶ 34, quoting State v. Gannon, 9th Dist. Medina No. 19CA0053-M, 2020-Ohio-3075, ¶ 20 (“[T]he jury is free to believe all, part, or none of the testimony of each witness.“). While the victim did admit to grabbing Ms. McManaway‘s wrist, he told the police at the scene and the jury at trial that he did so because she was trying to turn off the car while it was in motion, which created a dangerous situation. Having reviewed the record, this Court cannot say that Ms. McManaway has established
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO GIVE THE PROPER [] SELF DEFENSE INSTRUCTION FOR USE OF NON DEADLY FORCE IN PROTECTION OF OTHERS PURSUANT TO ORC 2901.05; [] SAID TRIAL MISCONDUCT CONSTITUTED PLAIN ERROR.
{19} In her third assignment of error, Ms. McManaway argues that the trial court committed plain error by not providing the jury with an instruction on defense of others. This Court disagrees.
{20} As McManaway acknowledges, her trial counsel did not object to the jury instructions at trial. As a result, she is limited to arguing plain error on appeal.
{21} As the Ohio Supreme Court has explained, “a trial court should limit its instructions to the jury to matters actually raised in the pleadings and in the evidence at trial.” Cromer v. Children‘s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 33. “If there is no
{22} The defense of others doctrine affords a person the privilege “to defend family members to the same extent he is entitled to protect himself.” State v. Skinner, 9th Dist. Lorain No. 06CA009023, 2007-Ohio-5601, ¶ 20, citing State v. Williford, 49 Ohio St.3d 247, 250 (1990). Regarding self-defense, this Court has stated:
“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 death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) did not violate any duty to retreat or avoid the danger.” 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.
State v. Preston, 9th Dist. Summit No. 29730, 2021-Ohio-1052, ¶ 5, quoting Warren at ¶ 12.
{23} Initially, we note that Ms. McManaway has not directed this Court to any facts or testimony in the record in support of her assertion that the trial court committed plain error by not instructing the jury on defense of others. See
ASSIGNMENT OF ERROR IV
APPELLANT‘S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{25} In her fourth assignment of error, Ms. McManaway asserts that her trial counsel provided ineffective assistance because he did not object to the jury instructions at trial and did not move for acquittal under
{26} To prevail on a claim of ineffective assistance of counsel, Ms. McManaway must establish that: (1) her counsel‘s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, “must indulge a strong presumption that counsel‘s conduct falls within the wide range
{27} Ms. McManaway‘s argument related to her counsel‘s failure to object to the jury instructions is premised on the lack of a defense-of-others instruction. As this Court has already concluded in our resolution of Ms. McManaway‘s third assignment of error, however, the trial court did not err by not instructing the jury on the defense of others. It, therefore, follows that Ms. McManaway cannot establish that she suffered prejudice by her counsel‘s failure to object to the jury instructions at trial.
{28} Regarding Ms. McManaway‘s trial counsel‘s failure to move for acquittal under
III
{30} Ms. McManaway‘s assignments of error are overruled. The judgment of the Wayne County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
SUTTON, J.
CONCUR.
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and FREELAND OLIVERIO, Assistant Prosecuting Attorney, for Appellee.