[Cite as State v. Matthews,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97916

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

STACEY MATTHEWS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-549605

BEFORE: Jones, P.J., Rocco, J., and Kilbane, J.

RELEASED AND JOURNALIZED: November 8, 2012 ATTORNEY FOR APPELLANT

Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Norman Schroth Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:

{¶1} Defendant-appellant Stacey Matthews appeals her convictions on six counts of

felonious assault, which were rendered after a jury trial. She also appeals her seven-year

sentence. We affirm in part, reverse in part, and remand for resentencing.

I. Facts and Procedural History

{¶2} The following trial testimony gave rise to the charges and convictions.

Matthews and alleged victim Felicia Nolen both have children fathered by the same man.

Prior to the date of the incident, Matthews and Nolen had had “problems” with each other.

{¶3} On April 19, 2011, McDonald’s Corporation held a national hiring day for its

restaurants. The McDonald’s located at East 105th Street and St. Clair Avenue in

Cleveland participated in the event and conducted interviews that day at that location.

The owner of the McDonald’s, victim Turan Strange, hired two security guards to help

with the event. Turnout for the interviews was much greater than expected, and the

applicants had to line up outside.

{¶4} Nolen and her sister, alleged victim Mariah Gilmore, went to the McDonald’s

to apply for jobs.1 The two were waiting outside in the long line when Nolen left to go to

her grandmother’s house, which was behind the McDonald’s, to check on her newborn

baby. While at her grandmother’s house, a phone call prompted Nolen to go outside, at

which time she saw her sister and Matthews. Matthews was in a car and had children

with her; she said that she had to drop the children off and then she “would be back.”

Nolen testified at trial; Gilmore did not. 1 Nolen got back in line with her sister.

{¶5} Matthews returned about 45 minutes later, this time without the children, but

with a front seat passenger, codefendant Cedrica Johnson. Strange, the owner of the

McDonald’s, and his operational manager, victim Marilyn O’Stricker, saw Matthew’s car

arrive. The car came onto the parking lot in the opposite direction of what was the

customary flow of traffic, and at a fast speed.

{¶6} Matthews parked the car in front of the line of applicants, she and Johnson got

out of the car and yelled to Nolen and Gilmore “come on, let’s fight, come on.” A verbal

and physical exchange erupted among Matthews, Johnson, Nolen, and Gilmore. Strange

approached Matthews to request that she and Johnson leave, but Matthews ignored his

request.

{¶7} Meanwhile, several other people joined the fray in an attempt to assist Strange

and diffuse the situation: (1) O’Stricker, the operational manager; (2) Charles Cole, a

private security guard; (3) victim Nigel Motley, an applicant at the McDonald’s; (4) Julian

Gaines, a McDonald’s employee; (5) Walter Holmes, a private security guard; and (6)

Erica Patton, a McDonald’s employee. At one point, Strange and one of the security

guards were struggling so hard to restrain Matthews, that all three fell to the ground.

{¶8} Eventually, however, Matthews and Johnson got back in the car. It is clear

from the record that by this time, the scene was chaotic, and thus, the testimony from this

point gets somewhat muddled. Matthews was in the driver’s seat. By one account,

Johnson was pulled into the car by Matthews, by another account, Johnson “hopped” into

the driver’s seat onto Matthews’s lap. {¶9} Matthews drove the car forward a short distance, but was blocked from

proceeding by parked cars. She then drove the car in the reverse direction, hitting

Strange, O’Stricker, Motley, Gaines, and Holmes. At the time Matthews drove the car in

reverse, Nolen was behind the vehicle; she was able to quickly move out of the way and

avoid being hit. Witnesses described the car as “barreling back,” being driven with a

“revved” motor, and “screeching.” Witnesses further testified that the incident happened

so fast and without any warning, such as a horn, to alert the victims to move out of the

way. Matthews then sped off from the scene.

{¶10} By some accounts, at the time Matthews drove the car in reverse, someone

was at the driver’s side still fighting her. But when showed a video of the melee, those

witnesses admitted that they were mistaken.

{¶11} William Tell, the chief of police for the utilities for the city of Cleveland,

was coincidentally driving in the area and saw Matthews car speed off the McDonald’s

parking lot and drive “erratically.” The situation looked “suspicious” to Tell so he

followed the car and ultimately decided to stop it. 2 Tell testified that when he

approached the car, Matthews and Johnson were “hysterical” and “acting crazy.” Tell

called 911 from his cell phone and while he was waiting for other police assistance,

Matthews fled the scene on foot. Johnson identified herself as “Natasha Grayer.”

{¶12} Meanwhile, many 911 calls were placed by witnesses who were at the

McDonald’s. One of the witnesses, Nicole Sims, told the dispatcher that Matthews did

2 Tell was driving an unmarked Ford Escape. Although the car did not have a siren, it had red, white, and blue lights, which he activated to effectuate the stop. not intentionally hit the victims, but was trying to escape being assaulted.

{¶13} The five victims hit by Matthews’s car suffered injuries. Strange was

knocked unconscious, sustained head trauma, and was hospitalized for three days.

O’Stricker suffered closed head trauma, a fractured knee, and a fractured clavicle. At the

time of trial, she had undergone 97 physical therapy sessions.

{¶14} Motley’s knee was injured and at the time of trial he was still undergoing

physical therapy. Gaines sustained a head injury, fractured wrist, and had scrapes on his

knees and elbows. He suffered from headaches for about a month after the incident.

And Holmes suffered injuries to his shoulders, neck, and knees. He had to use a walker

for a while, and at the time of trial he was using a cane.

{¶15} On this evidence, Matthews was charged with seven counts of felonious

assault (Counts 1 through 7) and two counts of assault (Counts 8 and 9). The remaining

counts of the indictment, Counts 10 through 13, charged Matthews’s codefendant, Cedrica

Johnson,3 with felonious assault and assault.

{¶16} Relative to Matthews, the named victims of the felonious assault were as

follows:

· Walter Holmes4 (Count 1, R.C. 2903.11(A)(2), did knowingly cause or attempt to

cause physical harm by means of a deadly weapon, to wit: a motor vehicle);

3 The indictment initially named as codefendant “Natasha Grayer,” the name Johnson gave to the police, but was amended prior to trial. 4 The indictment named “Walter Thomas” as the victim, but was amended during trial to name Holmes instead. · Turan Strange (Count 2, R.C. 2903.11(A)(2), did knowingly cause or attempt to

cause physical harm by means of a deadly weapon, to wit: a motor vehicle; and

Count 6, R.C. 2903.11(A)(1), did knowingly cause serious physical harm);

· Julian Gaines (Count 3, R.C. 2903.11(A)(2), did knowingly cause or attempt to

cause physical harm by means of a deadly weapon, to wit: a motor vehicle; and

Count 7, R.C. 2903.11(A)(1), did knowingly cause serious physical harm);

· Marilyn O’Stricker (Count 4, R.C. 2903.11(A)(2), did knowingly cause or attempt

to cause physical harm by means of a deadly weapon, to wit: a motor vehicle); and

· Nigel Motley (Count 5, R.C. 2903.11(A)(2), did knowingly cause or attempt to

cause physical harm by means of a deadly weapon, to wit: a motor vehicle).

{¶17} The named victims of assault relative to Matthews were: (1) Mariah Gilmore

(Count 8); and (2) Felicia Nolen (Count 9). Both assaults were charged under R.C.

2903.13(A), did knowingly cause or attempt to cause physical harm.

{¶18} At the conclusion of the state’s case, Matthews made a Crim.R. 29 motion

for acquittal. The motion was granted as to Count 8, assault against Mariah Gilmore, and

Count 9, assault against Felicia Nolen. The motion was denied as to the remaining

counts (Counts 1 through 7) against Matthews.

{¶19} Matthews requested that the jury be instructed on duress, but the trial court

denied the request. The trial court instructed the jury on aggravated vehicular assault, a

charge of an inferior degree of felonious assault. The court also instructed the jury on

accident, and over Matthews’s objection, on flight.

{¶20} After its deliberations, the jury found Matthews guilty of Counts 1 through 6, but not guilty of Count 7, felonious assault of Julian Gaines. At sentencing, the trial

court merged Counts 2 and 6 (felonious assault of Turan Strange). The court sentenced

Matthews to four years on Count 2 and three years on Count 4, to be served consecutively.

The court further sentenced Matthews to two years each on counts 3 and 5, to be served

concurrent to each other and the seven-year sentence. Thus, Matthews was sentenced to

a total of seven years imprisonment.

{¶21} Matthews now presents the following four assignments of error for our

review:

[I.] The trial court erred in denying Appellant’s motion for acquittal as to the charges when the state failed to present sufficient evidence against Appellant.

[II.] Appellant’s convictions are against the manifest weight of the evidence.

[III.] The trial court erred when it refused to instruct the jury on the defense of duress and the failure to do so deprived Appellant of right to a fair trial.

[IV.] The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.

II. Law and Analysis

A. Sufficiency of the Evidence

{¶22} For her first assigned error, Matthews contends that the state did not present

sufficient evidence to sustain her convictions. We disagree.

{¶23} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the state’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A)

and sufficiency of evidence review require the same analysis. State v. Mitchell, 8th Dist. No. 95095,

, ¶ 18, citing State v. Tenace,

,

,

.

{¶24} The role of an appellate court presented with a sufficiency of the evidence

argument is delineated as follows:

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶25} Matthews was convicted of felonious assault under R.C. 2903.11(A)(1) and

(2), which provide as follows:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.

{¶26} Matthews contends that there was no evidence that she acted “knowingly” in

hitting the victims with her car. We disagree.

{¶27} “A person acts knowingly, regardless of his purpose, when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances

probably exist.” R.C. 2901.22(B).

{¶28} The evidence established that Matthews first went to the McDonald’s with children in her car and told Gilmore, Nolen’s sister, with whom Matthews had had

“problems,” that she would be back. Matthews did come back, and this time, with

codefendant Johnson. Matthews drove onto the parking lot at a high rate of speed and in

the opposite direction of the ordinary flow of traffic. Both Matthews and Johnson got out

of the vehicle, and by all accounts, immediately started fighting with Gilmore and Nolen.

All accounts further confirmed that there was a large group of people waiting outside in

line.

{¶29} After the situation seemed to be diffusing, Matthews drove her vehicle in

reverse at a high rate of speed in the crowded parking lot, hitting her victims. At the

time, Nolen was behind the car, and narrowly escaped being hit. Matthews then fled the

scene. This evidence was sufficient to show that Matthews acted knowingly.

{¶30} In light of the above, the state presented sufficient evidence to support the

felonious assault convictions and the first assignment of error is therefore overruled.5

B. Manifest Weight of the Evidence

{¶31} In her second assignment of error, Matthews contends that the convictions

were against the manifest weight of the evidence. We are not persuaded.

{¶32} In a manifest weight analysis, an appellate court “reviews the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses

and * * * resolves conflicts in the evidence.” State v. Thompkins,

,

5 Although Matthews also contends that the evidence was insufficient to support assault (see appellant’s brief, p. 17), her Crim.R. 29 motion was granted as to the two assault charges against Gilmore and Nolen, Counts 8 and 9, respectively, and her contention is therefore moot. 387,

,

. “A court reviewing questions of weight is not

required to view the evidence in a light most favorable to the prosecution, but may

consider and weigh all of the evidence produced at trial.”

(Cook, J.,

concurring). An appellate court may not merely substitute its view for that of the jury,

but must find that “the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.”

. See

also

(Cook, J., concurring) (stating that the “special deference given in a

manifest-weight review attaches to the conclusion reached by the trier of fact.”).

Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in

which the evidence weighs heavily against the conviction.”

.

{¶33} This is not an exceptional case where the evidence weighs heavily against the

conviction. Matthews contends that her actions were an accident and that she was merely

trying to escape the scene because she “honestly believed that she was in immediate

danger of death or great bodily harm.”

{¶34} Although we consider credibility in a manifest weight review, issues relating

to the credibility of witnesses and the weight to be given are primarily for the trier of fact.

State v. Thomas,

,

(1982); State v. DeHass,

,

(1967), paragraph one of the syllabus. The trier of fact is free

to believe all, part, or none of the testimony of each witness who appears before it. State

v. Caldwell,

,

(4th Dist. 1992). In State v. Awan,

,

(1986), the court emphasized that appellate courts

must defer conflicts in the evidence to the trier of fact who had the opportunity to hear witnesses and observe their demeanor: “The choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its judgment for that of the trier of fact.”

{¶35} The jury was instructed on accident, but it chose not to believe Matthews’s

accident defense. Rather, the jury opted to believe the prosecution’s version of the facts.

We cannot say that the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed.

{¶36} In light of the above, the second assignment of error is overruled.

C. Duress Jury Instruction

{¶37} For her third assigned error, Matthews contends that the she was deprived of

her right to a fair trial by the trial court’s denial of her request for a duress jury instruction.

{¶38} It is within a trial court’s sound discretion to determine whether the evidence

presented at trial is sufficient to require a particular jury instruction. State v. Mitts,

,

,

. An appellate court can only reverse a

trial court’s refusal to give a defendant’s requested instruction upon a showing of abuse of

discretion by the trial court. State v. Midwest Pride IV, Inc.,

,

(12th Dist. 1998).

{¶39} The affirmative defense of duress is recognized as a legitimate defense to all

crimes, with the exception of taking an innocent person’s life. State v. Getsy,

, 197,

,

. However, the defense of duress is

extremely limited and should only be applied in rare instances. State v. Cross,

,

(1979). {¶40} In order to successfully raise the defense, a defendant has the “burden of

going forward with evidence of a nature and quality sufficient to raise” it. Getsy at 198.

Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim of duress. If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.

Id. at 198-199. Thus, before a trial court will instruct the jury on the defense of duress, it

must find as a matter of law that evidence presented is sufficient to warrant an instruction

on duress.

. (Emphasis added.)

One of the essential features of the defense of duress is a sense of immediate, imminent death, or serious bodily injury if the actor does not commit the act as instructed. * * * The force used to compel the actor’s conduct must remain constant; controlling the will of the unwilling actor during the entire time he commits the act, and must be of such a nature that the actor cannot safely withdraw.

Getsy at 199. (Citations omitted.) “All the conditions must be met,” before the

instruction is sufficiently warranted.

. If these conditions are not met,

“[t]he court may refuse to give an instruction which is not applicable to the evidence

governing the case * * *.”

{¶41} Upon review, we find that the all the conditions required for a duress

instruction were not met. The evidence demonstrates that a fight occurred, and Matthews

was an instigator and willing participant in it. At the time Matthews was back in her car,

the spectators believed the fight was over. After they were shown a video of the incident,

the witnesses who initially believed that Matthews was being assaulted as she was driving

away admitted that they were mistaken.

{¶42} In light of the above, the trial court did not abuse its discretion by denying Matthews request for a duress instruction and the third assignment of error is therefore

overruled.

D. Consecutive Sentences

{¶43} For her final assigned error, Matthews challenges the imposition of

consecutive sentences. Specifically, Matthews contends that the trial court failed to make

the required findings under R.C. 2929.14.

{¶44} The Ohio Supreme Court has identified a two-step process for appellate

review of felony sentences. State v. Kalish,

,

,

. First we must determine whether a sentence is contrary to law.

Then, if the sentence was not contrary to law, we review to determine whether the trial

court abused its discretion in selecting sentences within the range permitted by statute.

Id. at ¶ 17.

{¶45} With the enactment of Am.Sub.H.B. No. 86, effective September 30, 2011,

the General Assembly has revived the requirement that trial courts make findings before

imposing consecutive sentences under R.C. 2929.14(C). State v. Bonner, 8th Dist. No.

97747,

. Under R.C. 2929.14(C)(4), in imposing consecutive

sentences, the trial court must first find the sentence is necessary to protect the public from

future crime or to punish the offender. Next, the trial court must find that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.

{¶46} Finally, the trial court must find that at least one of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or

2929.18, or while under postrelease control for a prior offense; (2) at least two of the

multiple offenses were committed as part of one or more courses of conduct, and the harm

caused by two or more of the offenses was so great or unusual that no single prison term

for any of the offenses committed as part of any of the courses of conduct adequately

reflects the seriousness of the offender’s conduct; or (3) the offender’s history of criminal

conduct demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶47} In sentencing Matthews to consecutive terms, the trial court stated the

following:

So I believe that [a] prison sentence is going to be appropriate. * * * Court is going to sentence Miss Matthews to four years on count two, because of the seriousness of this matter, and the kind of injuries sustained with regard to count four. As far as Marilyn O’Stricker, I’m going to sentence to three years, but it’s going to be consecutive to count two. So total of seven years.

{¶48} A trial court is not required to use “talismanic words to comply with the

guidelines and factors for sentencing.” State v. Brewer, 1st Dist. No. C-000148,

, *10 (Nov. 24, 2000). But it must be clear from the record that

the trial court actually made the findings required by statute. State v. Pierson, 1st Dist.

No. C-970935,

(Aug. 21, 1998). A trial court satisfies this

statutory requirement when the record reflects that the court has engaged in the required

analysis and has selected the appropriate statutory criteria. See State v. Edmonson,

,

,

(1999).

{¶49} The record here does not demonstrate that the trial court engaged in the required analysis and made the necessary findings for the imposition of consecutive

sentences. The fourth assignment of error is therefore sustained.

{¶50} Judgment affirmed in part and reversed in part; case remanded for

resentencing.

It is ordered that appellee recover from appellant its 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

LARRY A. JONES, SR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and MARY EILEEN KILBANE, J., CONCUR