STATE OF OHIO, Plaintiff-Appellee, vs. DONNELL TERRY, Defendant-Appellant.
APPEAL NO. C-220379
TRIAL NO. C-22CRB-11475
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 23, 2023
[Cite as State v. Terry, 2023-Ohio-2074.]
Bock, Judge.
Criminal Appeal From: Hamilton County Municipal Court. Judgment Appealed From Is: Affirmed.
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.
{¶1} Defendant-appellant Donnell Terry challenges his conviсtion for aggravated menacing, arguing that the evidence at his trial proved that he pointed a gun at his daughter‘s stepgrandfather in self-defense. We disagree and affirm the trial court‘s judgment.
I. Facts and Procedure
{¶2} Following a dispute with Derrick Jackson on Jackson‘s porch, Terry pointed a handgun at Jackson. Jackson is the stepgrandfather of Terry‘s daughter. The state charged Terry with aggravated menacing in violation of
{¶3} At the bench trial, the state‘s case consisted of testimony from Jackson and Officer Patrick Meyer. According to Jackson, Terry knеw he was barred from visiting Jackson‘s house. Jackson recalled that on the morning of the incident, Terry visited Jackson‘s house and was “banging on [the] door [and] continuously ringing the doorbell.” Terry left but returned to Jacksоn‘s house later in the day. Terry was on the porch when Jackson opened the door and “told [Terry] to back up and he needed to leave my property.” According to Jackson, Terry replied, “make me,” before he took one step back and pointed a handgun at Jackson. Jackson recalled fearing that Terry would shoot him. As Terry continued to yell, Jackson closed the door and his wife called the police.
{¶4} Officer Meyer responded to the call and spoke with Jackson before signing warrants for Terry‘s arrest. Terry eventually turned himself in and admitted going to Jackson‘s house. Officеr Meyer testified that Terry had explained to him that Jackson was preventing Terry from seeing his daughter and “they got in[to] an altercation and he just ended up pointing the gun on him.”
{¶6} The trial cоurt found Terry guilty of aggravated menacing and that Terry “was not acting in self-defense” and the “[u]se of a deadly weapon was — there‘s no evidence to support that theory.” Specifically, the trial court found that Terry‘s “own statement to police” undercut his alleged fear for his life. The court found that, while Jackson pushed Terry off Jackson‘s porch, there was “no evidence, whatsoever, to support the contention that defendant reasonably feared for his life.” Further, the court found Terry at fault for creating the situation because he was on Jackson‘s property, “was told to leavе, and refused to do so.”
{¶7} The court sentenced Terry to a 180-day term of incarceration and credited him with one day served. Terry appeals his conviction and raises a single assignment of error.
{¶8} Tеrry maintains that the manifest weight of the evidence at trial proved that he used deadly force in self-defense.1 The parties agree that a manifest-weight argument tests the greater amount of credible evidence offered at trial. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In a manifest-weight challenge, we “‘consider[] the credibility of witnesses and determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and сreated such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶9} To succeed on a self-defense claim involving the use of deadly force, a defendant must show “(1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant 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 a danger was in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid the danger.” State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 48, citing State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). Failing to establish “‘any one of these elements‘” is fatal to a self-dеfense claim. (Emphasis in original). State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990), quoting State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986); see
{¶10} Beginning with the fear element, the evidence must show an honest, subjective belief of imminent danger of great bodily hаrm, and that the fear was objectively reasonable. Smith at ¶ 56, citing State v. Williams, 9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 29, citing State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997). This element is both subjective and objective. Id. Put differently, “a defendant‘s belief must be objectively reasonable under the circumstances and that belief must be honestly held by the defendant.” Id., citing Williams at ¶ 29, citing Thomas at 331.
{¶11} A subjective belief of imminent danger means that ” ’ “a defendant must demonstrate that he acted out of fear, or he felt that his life was threatened.” ’ ” State v. Blair, 2d Dist. Montgomery No. 28904, 2021-Ohio-3370, ¶ 11, quoting State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 24 (2d Dist.), quoting State v. Crawford, 2d Dist. Montgomery No. 22314, 2008-Ohio-4008, ¶ 26.
{¶12} Terry argues that his testimony established that he held a subjective fear оf imminent danger of great bodily harm. The trial court found that Terry‘s statement to police that he pointed the gun at Jackson because “he wanted to see the child and he wasn‘t allowed to be ovеr there, he got angry about it” undercut his argument that he had a subjective belief of imminent danger.
{¶14} A manifest-weight review requires this court to consider the witnesses’ credibility. Williams, 9th Dist. Summit No. 29444, 2020-Ohio-3269, at ¶ 32. But the trial court was “in the best position to take into account the inconsistencies in the evidence, as well as the demeanor and manner of the witnesses, and to determine which witnesses are more credible.” State v. Zafar, 10th Dist. Franklin No. 19AP-255, 2020-Ohio-3341, ¶ 51, quoting State v. Favor, 10th Dist. Franklin No. 08AP-215, 2008-Ohio-5371, ¶ 10. Terry‘s testimony was incongruous with both Jackson‘s and Meyer‘s, whiсh undermines his credibility as a witness. Plus, there is evidence that Terry pointed the gun at Jackson out of anger, not fear. It follows that the trial court‘s determination regarding Terry‘s subjective fear was not against the mаnifest weight of the evidence.
III. Conclusion
{¶17} We overrule Terry‘s sole assignment of еrror and affirm his conviction.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.