STATE OF OHIO v. DENETRIS SMITH
No. 99978
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 6, 2014
2014-Ohio-828
BEFORE: E.T. Gallagher, J., Jones, P.J., and McCormack, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-564826
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 6, 2014
Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, Ohio 44136
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jennifer O‘Malley
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Denetris Smith (“Denetris“),1 appeals her misdemeanor assault and felonious assault convictions. We find no merit to the appeal and affirm.
{¶2} Dеnetris was charged with one count of felonious assault in violation of
{¶3} Denetris, who testified in her own defense, offered a different story. She agreed that she and Leah had a brief argument in the living room of the house but did not want to fight in the presence of her grandchildren who were at the party. According to Denetris, she was playing with her grandchildren in front of the house when she was suddenly “smacked with a piece of brick” on the right side of her face. Denetris‘s vision
{¶4} Denetris‘s fiancé Derrick Motley, a.k.a. “Big Derrick,”2 was the only other witness at trial who was present at the scene of the fight. He testified that as soon as he and Denetris arrived at his mother‘s house, Leah was angry and spoke profanity to Denetris. Big Derrick and Denetris exchanged a few words with Leah before walking out the front door of the house. While Big Derrick was socializing, he heard somebody say, “You hit me,” and observed Denetris holding her face and Leah standing nearby. According to Big Derrick, Leah tried to hit Denetris again, and Denеtris hit her back. He observed Leah reaching for the grilling fork during the scuffle but Denetris managed to pick it up first. Although Big Derrick heard Denetris instruct Leah to “get back,” he admitted he did not actually see Denetris stab Leah.
{¶6} Based on this evidence, the trial court returned a not guilty verdict on Count 1, felonious assault in violation of
Sufficiency of the Evidence
{¶7} In the first assignment of error, Denetris argues the evidence adducеd at trial is insufficient to sustain her felonious assault conviction. She contends the state failed to prove that the grilling fork was a “deadly weapon” or “dangerous ordnance.”
{¶8}
{¶9} Denetris was convicted of feloniоus assault in violation of
{¶10} Denetris asserts that like a knife, the fork was adapted for use as a grilling utensil rather than a weapon and that she did not use or carry it as a weapon. She further
{¶11} However, Leah testified that she first saw the fork in Denetris‘s hands and that Denetris was using it as a deadly weapon. Even Denetris‘s testimony that she used the fork to keep Leah away from her is evidence of an intent to use the fork as a weapon, i.e., to protect herself. She was not merely removing the fork from the scene. Therefore, there was sufficient evidence to sustain Denetris‘s felonious assault conviction.
Self-Defense & Manifest Weight of the Evidence
{¶12} In the second assignment of error, Denetris argues both her misdemeanor assault and felonious assault convictions are against the manifest weight of the evidence. She contends the weight of the evidence proves she was acting in self defense.
{¶13} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). When reviewing a clаim that the judgment was against the manifest weight of the evidence, we review the entire record, weigh both the evidence and all the reasonable inferences, consider the credibility of witnesses and determine whether, in resolving сonflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 387. Therefore, an appellate court will reverse a conviction due to the manifest weight
{¶14} As previously stated, to establish felonious assault in violation of
{¶15} To establish self-defense, the defendant must demonstrate, 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 great bodily harm and that her only means of escape from such danger was in the use of such force; and (3) she must not have violated any duty to retreat or avoid danger. State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990); see also State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus. The elements of self defense are cumulative and ‘“[i]f the defendant fails to prove any one of these elements by a preponderance of the evidence, [s]he has failed to demonstrate that [s]he acted in self-defense.“’ (Emphasis deleted.) Williford, quoting State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986).
{¶16} Although Denetris testified that Leah attacked her with a brick and that she used the fork to defend herself, the court found Leah‘s testimony more credible.
{¶17} Denetris portrayed herself as the victim of a brutal attack with a brick. However, Denetris never reported the attack to the police, did not seek medical attention, and failed to offer any photographs of the alleged injuries to her heаd. During the investigation, Denetris gave police inconsistent reports of the events. She first told detectives that Leah fell on the fork during the fight and that she stabbed herself. She later changed her story and told detectives that she grabbed the fork and stabbed Leah because Leah was about to punch her. Moreover, Denetris testified that Leah ran up to her to attack her even though she was holding the fork and warning Leah to “get back.” According to Denetris, Leah ran into the fork.
{¶18} Denetris also testified that no one intervened to stop the fight even though Leah struck her twice in the head with a brick. However, Big Derrick corroborated Leah‘s testimony that people intervened to break up the fight as soon as she was stabbed. If the family would break up a fight when a person is stabbed, it is logical to conclude they would do the same if someone had been struck twice in the head with a brick.
{¶19} Based on the evidence presented at trial, it is reasonable that the court found Leah‘s testimony more credible. Leah‘s testimony establishes that Denetris violated a duty to avoid the fight and was equally responsible for “creating the situation giving rise
{¶20} Accordingly, the second assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover frоm 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the common pleas court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and TIM McCORMACK, J., CONCUR