[Cite as Cleveland v. Reese,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102936

CITY OF CLEVELAND PLAINTIFF-APPELLEE

vs.

SHEILA REESE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cleveland Municipal Court Case No. 2014CRB029336

BEFORE: McCormack, J., Kilbane, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: January 28, 2016 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender

By: David Martin King 310 Lakeside Avenue Suite 400 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry City of Cleveland — Law Department 601 Lakeside Avenue Room 106 Cleveland, OH 44114

Bryan Fritz Assistant City Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Appellant Sheila Reese and Jacqueline Garner were side-by-side neighbors

living in the same duplex. Appellant moved two years ago to the duplex that Garner had

lived in for 15 years. The two neighbors were not neighborly; they did not get along.

The “bad blood” between them culminated in an over-the-top incident where appellant

sprayed Garner with mace. The city of Cleveland charged appellant Reese with assault,

a first-degree misdemeanor.

{¶2} After a bench trial, the trial court found Reese guilty of assault. The court

sentenced her to 180 days of incarceration, all 180 days suspended, and placed her on one

year of probation.

Trial Testimony

{¶3} The city of Cleveland charged appellant under 621.03(a) of its codified

ordinances, which states: “No person shall cause or attempt to cause physical harm to

another.” The transcript reflects the following testimony at trial.

{¶4} Jacqueline Garner testified that around 12:30 p.m., on October 6, 2014, she

arrived at home. After parking her car, she went to get her mail. She then proceeded to

walk to her side of the duplex. As she was looking down at her mail, appellant, who

lived next door, came from behind and suddenly sprayed her with mace. Garner

screamed, asking appellant why. Appellant said, “I want to fuck you up and your

daughter.” Garner ran but fell. She got up and ran again to a municipal water

department crew who happened to be working nearby. She hollered for help and started to have an asthma attack. The water department crew called 911 on her behalf. The

police arrived 20 minutes later. Her daughter then arrived to take her to the hospital,

where a police officer interviewed her regarding the incident.

{¶5} Garner testified there was a troubled history between her and appellant.

Ten days before the incident, on September 28, 2014, appellant tried to stab her. In April

of that year, there was “another incident.” She did not elaborate on either.

{¶6} On cross-examination, Garner also acknowledged that sometime in

September 2014, the police were called to Garner’s unit when her daughters got into a

fight. Afterward, appellant approached her about the police call and Garner told

appellant to mind her own business. Garner denied she did anything on October 6 to

provoke appellant before appellant sprayed her with mace.

{¶7} Appellant testified to two events that precipitated the mace incident. Garner

wanted to sue the apartment’s management company for not responding to her complaint

about mold on her wall. Garner asked appellant to join her in the suit, but to Garner’s

dismay, appellant refused to be involved.

{¶8} Appellant also testified that on September 28, she called the police after

hearing a disturbance from Garner’s apartment. Before the police came, she went over to

Garner’s house. When she asked Garner if she was okay, Garner “attacked” her, saying,

“Bitch, get your ass in [your own] house.”

{¶9} Appellant described a drastically different version of the mace incident.

She testified that on October 6, 2014, Reese’s boyfriend, Caesar Steele, was with her. After Garner arrived at home and parked her car, she ran up to appellant and pointed her

finger in appellant’s face, saying “Bitch, you keep my name out [of] your mouth.”

Appellant testified that Garner pointed her finger three to four inches from her face and

she felt threatened. Appellant then put her own hand up to block Garner’s finger, saying

“get your finger out [of] my face.” Garner pushed appellant’s hand in appellant’s face.

The two then “tussled” with each other. At that point, Steele broke up the fight, but

Garner turned on him. Appellant stated that she took out the mace from her purse and

sprayed Garner in order to protect her boyfriend, who was 78 years old.

{¶10} Steele testified that he saw Garner approach appellant, point her finger at

appellant, and say “Bitch, I’m tired of you * * * talking about me to my neighbors.” The

two started “tussling,” and he broke up the fight. When he turned around, they came at

each other again. Appellant then reached into her purse, pulled out the mace, and

sprayed Garner with it. On cross-examination, Steele acknowledged that “[n]obody’s in

danger before the mace came out.”

{¶11} Before announcing the verdict of guilty, the trial court reasoned that the use

of the mace was excessive and unjustified under the circumstances.

{¶12} On appeal, appellant raises three assignments of error. They state:

1. The trial court erred and violated appellant’s state and federal due process rights when it disallowed the defendant’s witness testimony in regard to self-defense in violation of R.C. 2901.05, Ohio Constitution Article 1, Section 10, and U.S. Constitution Amendment VI.

2. The trial court erred and violated appellant’s state and federal due process rights when it considered evidence not properly admitted when deciding appellant’s self defense claim in violation of R.C. 2901.05, Ohio Constitution Article 1, Section 10, and U.S. Constitution Amendment VI.

3. The trial court erred and violated the defendant’s due process rights when it failed to provide the defendant the opportunity for allocution at sentencing.

Self-defense

{¶13} The first and second assignments of error both concern appellant’s claim of

self-defense. In order to establish self-defense, appellant must demonstrate: (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,

,

(1990). The elements of self-defense are cumulative, and the defendant must prove

all three elements by a preponderance of the evidence. State v. Jackson,

,

(1986).

{¶14} Under the first assignment of error, appellant claims the trial court erred in

not allowing Caesar Steele to answer a question posed by her counsel, depriving her of a

right to present evidence of self-defense.

{¶15} Our review of the transcript reflects that appellant presented extensive

evidence, through her and Steele’s testimony, to establish that she acted in self-defense

when she sprayed Garner with mace. {¶16} Appellant’s claim relates to a question posed by her counsel to Steele:

“[D]id you feel like Sheila [appellant] might be in danger?” The prosecutor objected to

this question, and the court sustained the objection. Appellant claims that Steele’s

testimony in response to this question would be essential to show that appellant, “as

viewed by someone who knew her well, had sufficient reason to fear for her safety and

act accordingly.”

{¶17} Steele’s answer as to whether he felt appellant might be in danger was

irrelevant to the germane issue of whether appellant had a bona fide belief that she was in

imminent danger of bodily harm. This is because Ohio adopts a subjective test to

determine whether the defendant holds a bona fide belief of imminent danger of bodily

harm. State v. Warmus,

,

,

(8th Dist.). The defendant acts in self-defense if he or she “honestly believes” that the

danger is imminent.

citing State v. Sallie,

,

(1998). Therefore, Steele’s testimony as to whether, from his perspective, he felt

appellant might be in danger before assaulting Garner with mace was irrelevant in that it

was not germane to the issue of whether appellant believed she was in danger of great

bodily harm. Accordingly, the trial court did not abuse its discretion in excluding

Steele’s testimony in response to the question posed. The first assignment of error lacks

merit.

{¶18} Under the second assignment of error, appellant argues the trial court

erroneously based its verdict on “facts not established by the City.” The claim relates to the following statement made by the court when it articulated its reasoning before finding

appellant guilty:

The officer [whose] testimony we did not hear today, which is the officer

who actually conducted the investigation, after hearing from both sides

apparently decided at the time that the predominant aggressor in the

situation was the defendant; and the Court can only assume that that

conclusion was drawn because of the use of a weapon of some sort.

{¶19} Appellant claims that in finding her guilty, the trial court improperly took

“judicial notice” of the investigating officer’s determination that appellant was the

primary aggressor. This claim lacks merit.

{¶20} The notion of primary aggressor is typically referred to in the domestic

violence context. “Primary aggressor” is not an element of domestic violence or any

criminal offense, but rather a determination that is required to be made by a police officer

before making an arrest in situations where two persons assault each other. State v.

Boldin, 11th Dist. Geauga No. 2007-G-2808,

; R.C. 2935.032(A);

R.C. 2935.03(B)(3)(b).

{¶21} Our reading of the trial court’s remark in context indicates that the trial court

was simply noting the fact that the investigating officer made the determination that

appellant was the primary aggressor and therefore arrested her rather than Garner,

because of appellant’s use of the spray. This observation was not a taking of judicial

notice under Evid.R. 201. Furthermore, the trial court did not rely on the officer’s determination of primary aggressor to reach the guilty verdict. Rather, our review of the

transcript reflects that the trial court reviewed and scrutinized the testimony of the trial

witnesses to reach the conclusion that appellant’s self-defense claim was not supported by

the evidence. The second assignments of error is without merit.

Right of Allocution

{¶22} Under the third assignment of error, appellant claims the trial court failed to

provide her the opportunity for allocution at sentencing.

{¶23} A defendant’s right of allocation is described in Crim.R. 32. The rule

provides that, at the time of imposing sentence, the trial court shall “[a]fford counsel an

opportunity to speak on behalf of the defendant and address the defendant personally and

ask if he or she wishes to make a statement in his or her own behalf or present any

information in mitigation of punishment.” Crim.R. 32(A)(1).

{¶24} R.C. 2929.19, which governs the trial court’s duty in a sentencing hearing,

also requires the court to “ask the offender whether the offender has anything to say as to

why sentence should not be imposed upon the offender.” R.C. 2929.19(A)(1).

{¶25} The courts have recognized that the right of allocution applies to both felony

and misdemeanor offenders. Beachwood v. Hill, 8th Dist. Cuyahoga No. 93577,

, ¶ 32.

{¶26} Our review of the sentencing transcript reflects that prior to sentencing,

appellant’s counsel spoke on her behalf. Counsel noted certain mitigating factors:

appellant suffered from anxiety disorder and she had a below average IQ. Counsel also presented the court with letters from people who vouched for appellant’s good character:

she was a good tenant, and she was active in the church community.

{¶27} Appellant addressed the court as well. However, despite being given the

opportunity to make presentence comments, instead of providing mitigating information,

she contested her guilt and claimed the victim fabricated the allegations. The trial court

at that point stopped her and reminded her that she had been found guilty by the court.

Only then did the trial court proceed to sentence her. Immediately after the trial court

imposed the sentence, appellant had an outburst — interrupting the court and blurting out:

“She’s [referring to Garner] going to continue messing with me and calling the police.

She going to continue.” The bailiff stopped appellant, and the court reprimanded her,

threatening to place her in jail if she were to continue disrupting the courtroom.

{¶28} The record thus reflects that appellant was given a full opportunity to

address the court. She was interrupted only at the point that, instead of presenting

information in mitigation of punishment, she continued to contest the court’s already

determined finding of guilt. More importantly, the record reflects that her counsel had

already advocated on her behalf for a lenient punishment. Appellant fails to demonstrate

how her self-proclaimed lack of opportunity to fully address the court prejudiced her.

State v. Smelcer,

,

(8th Dist. 1993) (a claim

regarding a defendant’s right of allocution is reviewed under a harmless error analysis).

The third assignment of error is overruled.

{¶29} Judgment affirmed. It is ordered that appellee recover of 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 municipal

court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

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

the Rules of Appellate Procedure.

____________________________________ TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and SEAN C. GALLAGHER, J., CONCUR