[Cite as State v. Geter-Gray,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C. A. No. 25374

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE LISA LYNETTE GETER-GRAY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 08 12 4206

DECISION AND JOURNAL ENTRY

Dated: April 13, 2011

DICKINSON, Presiding Judge.

INTRODUCTION

{¶1} Lisa Geter-Gray beat up Stephanie Williams in a fight at Ms. Geter-Gray’s house

that both blamed the other for starting. A jury convicted Ms. Geter-Gray of felonious assault,

and the trial court sentenced her to four years in prison. Ms. Geter-Gray has appealed, arguing

that her convictions are against the manifest weight of the evidence, that the trial court

incorrectly instructed the jury about self-defense, that her lawyer was ineffective, and that the

trial court exercised improper discretion when it imposed her sentence. We affirm because Ms.

Geter-Gray’s conviction is not against the manifest weight of the evidence, the self-defense

instruction was not plain error, her lawyer was not ineffective, and the trial court exercised

proper discretion when it imposed Ms. Geter-Gray’s sentence. 2

FACTS

{¶2} On December 8, 2008, Ms. Geter-Gray and Ms. Williams met at Ms. Williams’s

home to talk, watch movies, drink alcohol, and use drugs. According to Ms. Williams, Ms.

Geter-Gray said that it was her birthday, so she gave Ms. Geter-Gray some of her clothes and a

used computer as gifts.

{¶3} Later in the evening, Ms. Geter-Gray invited Ms. Williams to her house to

continue their activities. Ms. Williams testified that they went into Ms. Geter-Gray’s den and

started drinking. After they were done, she got up to leave. Ms. Geter-Gray got up too and

started walking in front of her, as if she was going to walk her out. When they got to the door of

the den, however, Ms. Geter-Gray locked it, turned around, pulled Ms. Williams’s jacket over

her head, and began hitting her in the face. According to Ms. Williams, Ms. Geter-Gray’s initial

blows made her eyes bleed, causing her to lose most of her sight. When she asked Ms. Geter-

Gray why she was hitting her, Ms. Geter-Gray answered that it was “[b]ecause you got

everything.”

{¶4} Ms. Williams testified that Ms. Geter-Gray hit her with an object that she

assumed was a bottle, and she fell to the floor. Ms. Geter-Gray next wrapped something around

Ms. Williams’s neck and began choking her, causing her to lose consciousness. When she

regained consciousness, she heard Ms. Geter-Gray screaming her name. She saw some other

people out of the corner of her eye that she thought were Ms. Geter-Gray’s boyfriend and

children and heard them discussing what they should do with her, whether they should take her

to the hospital or dump her somewhere. According to Ms. Williams, she waited until they

carried her outside, then broke free and ran across the street to a relative’s house. She passed out

when she reached the door of the relative’s house, but vaguely remembered riding in an 3

ambulance and arriving at the hospital. She also remembered trying to tell whoever was near her

what had happened. Ms. Williams testified that, as a result of Ms. Geter-Gray’s attack, she had a

lot of bruising, swelling, and deep cuts on her neck and face.

{¶5} Ms. Geter-Gray testified that she went to Ms. Williams’s house to drink and

watch a movie. She also tried to smoke marijuana that she thought she had in her purse, but

couldn’t find it. She, therefore, got out her crack pipe instead. Ms. Geter-Gray testified that,

when she attempted to smoke the pipe, Ms. Williams started whining about her smoking in front

of her. Ms. Geter-Gray explained that she regularly provided drugs to Ms. Williams because Ms.

Williams did not have much money. Ms. Geter-Gray testified that, because it was her birthday,

she did not want to be disturbed while she smoked. She, therefore, stopped the movie and called

her boyfriend to pick her up. As she was waiting for her boyfriend to arrive, Ms. Williams asked

if she could go too, and Ms. Geter-Gray eventually gave in.

{¶6} Ms. Geter-Gray testified that, when they arrived at her house, Ms. Williams and

she went to the den. Ms. Geter-Gray explained that she locked the door behind them so Ms.

Williams would not wander around the house. Ms. Geter-Gray testified that, after they had a

shot, she took out her crack pipe again and started to take a hit. Ms. Williams, however, started

complaining and asking if Ms. Geter-Gray could take her somewhere so that she could trade

prescription pills for crack. Ms. Geter-Gray testified that Ms. Williams’s conduct was rude,

explaining that “[y]ou’re not supposed to interrupt nobody when their elbow is bent.” Ms.

Geter-Gray stood up to leave, but then Ms. Williams “snapped,” grabbed a bottle, and swung it at

her. Ms. Geter-Gray dodged the bottle, grabbed one of her own, and hit Ms. Williams with it.

Ms. Williams grabbed an extension cord and started twirling it around like a lasso, but Ms. 4

Geter-Gray caught the end of it, which caused the rest to wind around Ms. Williams’s neck. Ms.

Geter-Gray testified that they fought for a couple more minutes until Ms. Williams gave up.

{¶7} According to Ms. Geter-Gray, after the fight ended, Ms. Williams continued

verbally harassing her. Ms. Geter-Gray asked her boyfriend to call her children to the house.

When her children arrived, they discussed calling an ambulance for Ms. Williams. When Ms.

Williams heard them talking about paramedics, however, she slumped over and played dead.

Ms. Geter-Gray repeatedly called Ms. Williams’s name, but Ms. Williams acted like she could

not hear. Ms. Geter-Gray eventually ordered Ms. Williams to stand up, which Ms. Williams did.

She then ran outside. According to Ms. Geter-Gray, her daughter called 911 while her boyfriend

and she looked for Ms. Williams. Her boyfriend spotted Ms. Williams lying on the ground

across the street, and he directed the paramedics to her when they arrived.

MANIFEST WEIGHT

{¶8} Ms. Geter-Gray’s first assignment of error is that her conviction is against the

manifest weight of the evidence. If a defendant argues that her conviction is against the manifest

weight of the evidence, this Court “must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.

Otten,

(1986).

{¶9} A jury convicted Ms. Geter-Gray of felonious assault under Section

2903.11(A)(1) of the Ohio Revised Code. Under Section 2903.11(A)(1), “[n]o person shall

knowingly . . . [c]ause serious physical harm to another . . . .” Ms. Geter-Gray has argued that

the jury should have found that she acted in self-defense. “Self-defense is an affirmative defense 5

that requires a defendant to prove three elements by a preponderance of the evidence: ‘(1) the

defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide

belief that she was in imminent danger of death or great bodily harm and that her only means of

escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid

the danger.’” State v. Goff,

,

(quoting State v.

Thomas,

(1997)). “The defendant is privileged to use that force which is

reasonably necessary to repel the attack.” State v. Williford,

(1990).

{¶10} Ms. Geter-Gray has noted that, although her children did not see the fight, they

corroborated that Ms. Williams was awake and alert after the fight. Her daughter further

corroborated that Ms. Williams verbally harassed her after the fight and that Ms. Williams

“play[ed] . . . possum” while she called 911. Her daughter also refuted Ms. Williams’s story that

they carried her out of the house.

{¶11} Ms. Geter-Gray has also argued that Ms. Williams’s testimony was inconsistent

with what she told medical professionals the day of the fight. Ms. Geter-Gray has noted that Ms.

Williams told a paramedic that she had had two beers, but testified at trial that she does not drink

beer. Ms. Williams told a nurse that Ms. Geter-Gray threw alcohol in her face, but did not repeat

that at trial. Ms. Williams also did not tell the nurse that she had used any alcohol or drugs the

night of the fight. Ms. Williams further told a paramedic that “they” “held her all night,” but

testified at trial that it was only Ms. Geter-Gray who restrained her.

{¶12} The jury was entitled to reject the testimony of Ms. Geter-Gray’s children, who

were not impartial witnesses. Ms. Geter-Gray also undermined her own credibility by admitting

that she had smoked crack the morning she gave her testimony, and that she has a bad memory.

According to Ms. Geter-Gray, “I could say that I’m [going to go] to the store and then at five 6

minutes later, I say what did I just say because my memory does what it wants to do.” In

addition, there were some inconsistencies in her testimony. Although Ms. Geter-Gray testified

that Ms. Williams used a bottle during the fight, she did not tell that to police. She also testified

that her boyfriend had called her children to come over, while both of her children testified that it

was Ms. Geter-Gray who had called them. Furthermore, Ms. Geter-Gray admitted that she was

annoyed with Ms. Williams for repeatedly interrupting her crack use. Accordingly, although

there were some minor inconsistencies in what Ms. Williams told the paramedic, the nurse, and

the jury, they do not convince us that the jury lost its way in finding that Ms. Geter-Gray failed

to establish that she acted in self-defense. Ms. Geter-Gray’s first assignment of error is

overruled.

SELF-DEFENSE INSTRUCTION

{¶13} Ms. Geter-Gray’s second assignment of error is that the trial court gave the jury

confusing instructions regarding self-defense. Her third assignment of error is that her trial

lawyer was ineffective for not objecting to the instructions. Because these assignments of error

are related, we will address them together.

{¶14} Ms. Geter-Gray has argued that the trial court incorrectly instructed the jury about

when the duty to retreat arises. According to her, because it was undisputed that the fight

occurred in her home, the court should not have said anything about the duty to retreat.

{¶15} Because Ms. Geter-Gray did not object to the retreat instruction, she has forfeited

all but plain error. Crim. R. 52(B). Although Rule 52(B) of the Ohio Rules of Criminal

Procedure permits appellate courts to take notice of plain errors, such notice is to be taken “with

the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” State v. Long,

(1978). To prevail on a claim of plain error, Ms. 7

Geter-Gray must show that, “but for the error, the outcome of the trial clearly would have been

otherwise.” State v. Murphy,

(2001) (quoting State v. Campbell,

(1994)).

{¶16} The trial court told the jury that, to establish self-defense, Ms. Geter-Gray had to

prove “that [she] was not at fault in creating the situation giving rise to the offense of felonious

assault . . . [that she] had reasonable grounds to believe and an honest belief, even though

mistaken, that she was in immediate danger of great bodily harm and that her only means to

protect herself from such danger was by the use of deadly force, and [that she] has not violated

any duty to retreat, escape or withdraw to avoid the danger.” The court explained that Ms.

Geter-Gray had a duty to retreat if she created the situation, did not reasonably believe she was in

immediate danger, or did not reasonably believe that the only means of escape from the danger

was by the use of deadly force.

{¶17} Although the trial court explained the duty to retreat, it also told the jury that, “[i]f

[Ms. Geter-Gray] was assaulted in her own home, [she] had no duty to retreat or escape and

could use such means as are necessary to repel the assailant from the home . . . .” Accordingly,

because the court told the jury that Ms. Geter-Gray did not have a duty to retreat if she was

attacked in her own home, Ms. Geter-Gray has not demonstrated plain error. See Beckett v.

Warren,

,

(noting that a jury is presumed to follow the

instructions given to it by the judge).

{¶18} Ms. Geter-Gray has next argued that the trial court incorrectly used the term

“deadly force” throughout its instructions. She has argued that, by describing the force she used

to repel Ms. Williams as deadly, the trial court necessarily implied that the force she used was

sufficient to cause “serious physical harm” under Section 2903.11(A)(1). The instructions, 8

therefore, removed the issue of whether she caused serious physical harm to Ms. Williams from

the jury’s province.

{¶19} The trial court told the jury that, if Ms. Geter-Gray “had reasonable grounds to

believe and an honest belief, even though mistaken, that she was in immediate danger of great

bodily harm and that her only means to protect herself from such danger was by the use of

deadly force[,]” she “was justified in using that force, even though she was mistaken as to the

existence of the danger.” Ms. Geter-Gray objected to the instruction for two reasons. She

objected to the court’s use of the phrase “great bodily harm,” arguing that she had a right to

defend herself if she was afraid of any bodily harm. She also objected to the court’s use of the

term “deadly force,” arguing that she had the right to defend herself with less than deadly force.

After discussion, the court changed its instruction regarding Ms. Geter-Gray’s first objection,

explaining to the jury that Ms. Geter-Gray had the right to defend herself “even if she was in

imminent or immediate danger of bodily harm, just bodily harm[.]” Ms. Geter-Gray told the

court that she was satisfied with the instruction. We, therefore, will only review Ms. Geter-

Gray’s argument for plain error. See Crim. R. 52(B).

{¶20} Regarding the amount of force Ms. Geter-Gray used, the trial court did not say

that Ms. Geter-Gray used deadly force, it only instructed the jury to determine whether she “had

reasonable grounds to believe . . . that she was in immediate danger of great bodily harm,” such

that she honestly believed “that her only means of escape from that danger was the use of deadly

force[.]” It told the jury to consider Ms. Williams’s conduct and “decide if her acts and words

caused [Ms. Geter-Gray] to reasonably and honestly believe that she was about to receive serious

bodily harm.” It also explained that “[t]he law does not measure nicely the degree of force

which may be used to repel an attack,” and told the jury that, if Ms. Geter-Gray “used more force 9

than reasonably appears to be necessary under the circumstances, and if the force that is used is

so greatly disproportionate to her apparent danger as to show an unreasonable purpose to injure

[Ms.] Williams, then the defense of self-defense is not available.”

{¶21} Even if the jury concluded that Ms. Geter-Gray honestly believed that her only

means of escape was the use of deadly force, it does not mean that the jury concluded that she

used deadly force. Moreover, considering that Ms. Geter-Gray admitted to telling an

investigating officer that she choked Ms. Williams with an extension cord, she can not

demonstrate that she was prejudiced by the court’s references to deadly force. See R.C.

2901.01(A)(2) (defining deadly force as “any force that carries a substantial risk that it will

proximately result in the death of any person.”). We conclude that Ms. Geter-Gray has failed to

demonstrate that the trial court’s mention of deadly force was plain error.

{¶22} Ms. Geter-Gray has next argued that the trial court should have defined the term

“situation” because the phrase “creating the situation giving rise” is ambiguous. If an instruction

is claimed to be “ambiguous and therefore subject to an erroneous interpretation,” a reviewing

court should normally ask “whether there is a reasonable likelihood that the jury has applied the

challenged instruction” incorrectly. State v. Herring,

(2002) (quoting

Boyde v. California,

(1990)). Because Ms. Geter-Gray did not object to the

instruction, however, our review is limited to plain error. See Crim. R. 52(B).

{¶23} The trial court told the jury that, to establish self-defense, Ms. Geter-Gray had to

prove “that [she] was not at fault in creating the situation giving rise to the offense of felonious

assault .” Ms. Geter-Gray has argued that the instruction impermissibly allowed the jury to find

that she created the “situation” by drinking and using drugs with Ms. Williams, even if it

believed Ms. Williams was the one who started the fight. She has argued that the court should 10

have used language from State v. Gillespie,

,

, instead. Id.

at ¶17 (concluding that defendant had “to show that he was not ‘at fault’ in creating the situation;

that is, that he had not engaged in such wrongful conduct toward his assailant that the assailant

was provoked to attack the defendant.”).

{¶24} The language criticized by Ms. Geter-Gray has been approved by the Ohio

Supreme Court in several cases. See State v. Barnes,

(2002); State v.

Palmer,

(1997) (quoting State v Melchior,

(1978)); State v. Williford,

(1990) (quoting State v. Robbins,

, paragraph two of the syllabus (1979)). We, therefore, conclude that there was no error, let

alone plain error.

{¶25} Ms. Geter-Gray has also argued that the trial court incorrectly instructed the jury

that she had the burden of proving self-defense. See Martin v. Ohio,

(1987)

(concluding that Ohio practice of requiring self-defense to be proved by the defendant is

constitutional). She has argued that, even though self-defense is an affirmative defense under

Section 2901.05(A) of the Ohio Revised Code, the statute has been abrogated by District of

Columbia v. Heller,

(2008). According to Ms. Geter-Gray, in Heller, the United

States Supreme Court held that every individual has an inherent right to self-defense. Because

self-defense is a constitutional privilege, an individual acting in self-defense is always acting

lawfully. Since the State had the burden of proving that she was acting unlawfully, it was the

State’s burden to prove that she was not acting in self-defense.

{¶26} Ms. Geter-Gray has misread Heller. Heller was about whether the Second

Amendment confers an individual right to keep and bear arms. D.C. v. Heller,

(2008). The Supreme Court held that the Second Amendment protects an individual’s right to 11

possess a firearm.

. Although it identified the right to self-defense as “central to the

Second Amendment right” it did not in any way modify the underlying right to self-defense.

.

{¶27} Ms. Geter-Gray has further argued that her trial lawyer was ineffective for not

objecting to the trial court’s self-defense instruction, resulting in confusing instructions being

given. To establish that her lawyer was ineffective, Ms. Geter-Gray “must show (1) deficient

performance by counsel, i.e., performance falling below an objective standard of reasonable

representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the

proceeding’s result would have been different.” State v. Hale,

, 2008-Ohio-

3426, at ¶204 (citing Strickland v. Washington,

(1984); State v.

Bradley,

, paragraph two of the syllabus (1989)). “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Strickland,

.

{¶28} We have reviewed the jury instructions as a whole and conclude that the self-

defense instruction was not confusing. See State v. Jalowiec, 91 Ohio St. 3d. 220, 231 (2001)

(noting that “a single instruction to a jury may not be judged in artificial isolation but must be

viewed in the context of the overall charge.”) (quoting State v. Price,

,

paragraph four of the syllabus (1979)). Accordingly, Ms. Geter-Gray has not established that

there is a reasonable probability that, but for her lawyer’s failure to object, the result of her trial

would have been different. Ms. Geter-Gray’s second and third assignments of error are

overruled.

SENTENCE

{¶29} Ms. Geter-Gray’s fourth assignment of error is that the trial court exercised

improper discretion when it sentenced her to prison. In State v. Kalish,

, 12

, a plurality of the Ohio Supreme Court determined that, in light of State v.

Foster,

,

, when appellate courts review criminal sentences, they

must apply a “two-step approach.” Id. at ¶4. The first step is whether the sentence was contrary

to law. Id. The second step is whether the court exercised proper discretion in imposing the

term of imprisonment. Id. at ¶26. The parties agree that Kalish provides the correct standard of

review in this case.

{¶30} Ms. Geter-Gray has argued that her four-year sentence was excessive in light of

her minimal criminal record. She has also argued that it was based on the trial court’s incorrect

belief that she had hit Ms. Williams “in excess of 30 or 40 times just because you feel

disrespected[.]” According to Ms. Geter-Gray, there was no evidence presented that she hit Ms.

Williams 30 to 40 times or that she did so because she felt disrespected.

{¶31} Ms. Geter-Gray’s felonious assault conviction is a felony of the second degree,

meaning the trial court could sentence her to “two, three, four, five, six, seven, or eight years”

under Section 2929.14(A)(2) of the Ohio Revised Code. As noted earlier in this opinion, Ms.

Geter-Gray testified that, just before the fight began, Ms. Williams interrupted her while she was

smoking crack. According to Ms. Geter-Gray, “[y]ou’re not supposed to interrupt nobody when

[they are smoking crack]. That’s disrespectful to whatever they paid to smoke.” Furthermore,

the State presented 67 photographs of the injuries Ms. Williams suffered to her eyes, cheeks,

lips, chin, forehead, nose, arms, hands, fingers, knees, throat, back, and shoulders. The trial

court’s characterization of the number of times Ms. Geter-Gray hit Ms. Williams was reasonable

in light of the medical evidence presented. We conclude that the trial court complied with the

applicable sentencing laws and exercised proper discretion when it imposed Ms. Geter-Gray’s

sentence. Her fourth assignment of error is overruled. 13

CONCLUSION

{¶32} Ms. Geter-Gray’s conviction is not against the manifest weight of the evidence,

the trial court’s self-defense instruction was not plain error, Ms. Geter-Gray’s lawyer was not

ineffective, and the trial court exercised proper discretion when it sentenced her. The judgment

of the Summit County Common Pleas 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 Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

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. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

MOORE, J. BELFANCE, J. CONCUR 14

APPEARANCES:

TODD M. CONNELL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.