STATE OF OHIO, Plаintiff-Appellee, vs. VICKY VANDERGRIFF, Defendant-Appellant.
APPEAL NO. C-200282
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 17, 2021
[Cite as State v. Vandergriff, 2021-Ohio-3230.]
TRIAL NO. C-19CRB-26243; Criminal Appeal From: Hamilton County Municipal Court; Judgment Appealed From Is: Affirmed
Law Office of Arica L. Underwood LLC and Arica L. Underwood, for Defendant-Appellant.
BERGERON, Judge.
{¶1} What started as a routine shopping trip ended with an assault conviction after a verbal confrontation between defendant-appellant Vicky Vandergriff and another customer mushroomed into an all-out brawl. Ms. Vandergriff now аppeals, claiming a violation of her due process rights and portraying her conviction as against the weight and sufficiency of the evidence. Because Ms. Vandergriff invited the triаl court‘s decision that she now challenges on appeal, we reject her due process challenge. We also conclude that her conviction was supported by the weight and sufficiency of the evidence and affirm the trial court‘s judgment.
I.
{¶2} Ms. Vandergriff and her wife went to Dollar Tree with codefendant Heaven Albright. But while paying for her merchandise, Ms. Vandergriff became angry with two of the cashiers and began to verbally accost them, even threatening to beat one of them with her crutch (she was recovering from a knee injury). Another customer in a nearby check-out lane, John Neidich, took umbrage with Ms. Vandergriff‘s behavior and intervened by informing her that her actions weren‘t necessary. Instead of deescalating the situation, Mr. Neidich‘s remark infuriated Ms. Vandergriff, prompting her to retort that he had better shut his mouth or she would attack him as well. A war of words ensued between the two, eventually escalating into a physical melee as they tumbled out of the store.
{¶3} In Mr. Neidich‘s telling, Ms. Vandergriff‘s wife shoved him as he left the store. And after he warned her to not touch him, she pushed him out the door as Ms. Vandergriff struck him on the hеad with her crutch. Mr. Neidich testified that
{¶4} Unsurprisingly, Ms. Vandergriff offers a different perspective on the encounter, although she largely corroborates the general tenor of the verbal altercation that precipitated the fight. In Ms. Vandergriff‘s rendition, it was Mr. Neidich who initiated the fight by first pushing her wife, then proceeding to punch Ms. Vandergriff in the face after she tried to intervene. Thus, Ms. Vandergriff claims that she acted in self-defense.
{¶5} In addition to Mr. Neidich‘s and Ms. Vandergriff‘s testimony, two Hamilton County deputies testified. They explained that upon аrriving at Dollar Tree, Mr. Neidich looked like he had survived a beating: they saw his shirt in tatters, a bite mark that was bleeding, and a series of scratches on his neck and face. All three women werе charged with misdemeanor assault under
{¶6} The case proceeded to a bench trial with Ms. Vandergriff and Ms. Albright being tried together a codefendants. Ultimately, the trial court believed Mr. Neidich‘s version of events, finding Ms. Vandergriff guilty (but not Ms. Albright) and
II.
{¶7} In her first assignment of error, Ms. Vandergriff insists that her due process rights were violated because the trial court did not require the state or Dollar Tree to produce any surveillance video. Although Ms. Vandergriff requested Dollar Tree to turn over any video, it apparently never responded. At trial, defеnse counsel asked one of the deputies about surveillance footage, and the deputy responded that he thought video existed but that he had not viewed it. This statement by the deputy caught the trial court by surprise, and during recess, the court explored the issue with counsel in chambers. Once the trial resumed, the court addressed the issue on the record.
COURT: But we did have аn issue come up * * * in regard to a video that may or may not exist. It‘s my understanding that the state does not have the video, is that correct?
PROSECUTOR: Correct.
COURT: There has, however, been at least a suggestion that Dollar Tree may in fact still have the ability to produce this video. * * * [H]owever, I have indicated to you [defense counsel] that if either one of you wanted a continuance in progress before we got to your portion of the case * * * I would give a continuance in progress * * * .
MS. VANDERGRIFF‘S ATTORNEY: On behalf of Ms. Vandergriff, I have spoken with Ms. Vandergriff, advised her of what was going on, аnd we would like to continue with the trial.
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CO-DEFENDANT ALBRIGHT‘S ATTGORNEY: Your honor, we would like to proceed with trial as well.
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COURT: For the defendants, you understand what I was giving was the opportunity if in fact the video has not been lоcated yet, however in abundance of caution, I was willing to allow your attorneys to have a continuance to see if they could obtain it. Everyone is electing not to do that, is that correct?
MS. VANDERGRIFF: Yes, ma‘am * * * .
{¶8} Although the trial court gave Ms. Vandergriff two options—proceeding with trial or taking a pause to try to track down the footage—she now argues it erred by deferring to hеr choice. Even if we imagine that the trial court somehow went astray, Ms. Vandergriff cannot now object because “[t]he doctrine of invited error specifies that a litigant may not ‘take advantage of an error which he himself invited or induced.’ ” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 279, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. To be sure, “invited error must be more than mere ‘acquiescencе in the trial judge‘s erroneous conclusion * * * .’ ” State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000), quoting Carrothers v. Hunter, 23 Ohio St.2d 99, 103, 262
III.
{¶9} In her second and third assignments of error, Ms. Vandergriff characterizes her conviction as contrary to the weight and sufficiency of the evidence. In reviewing Ms. Vandergriff‘s manifest-weight challenge, wе sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In other words, we review the evidence, the credibility of witnesses, and the entire record. Id. But we will only reverse if the trial court ” ‘clearly lost its way and created such а 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). Here, Ms. Vandergriff does nothing to explain how the trial court lost its way in finding Mr. Neidich more believable. Furthermore, “it is well settled law that matters as to the credibility of witnesses are for the trier of fact to resolve.” State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-Ohio-9189, ¶ 21. ” ‘When conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the trier of fact believed the prosecution testimony.’ ” State v. Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29, quoting State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. Thus, we find Ms. Vandergriff‘s manifest weight challenge unpersuasive and overrule her second assignment of error.
{¶10} As to Ms. Vandergriff‘s sufficiency challenge, she narrowly argues that the state failed to meet its burden of proof as required in Ohio‘s self-defense statute. See
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{¶11} In light of the foregoing analysis, we overrule Ms. Vandergriff‘s three assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion