[Cite as State v. Schooler,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28596 : v. : Trial Court Case No. 2019-CRB-4669 : KIM SCHOOLER : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 4th day of September, 2020.

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ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant Prosecuting Attorney, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 390, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215 Attorney for Defendant-Appellant

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HALL, J. -2-

{¶ 1} Kim Schooler appeals from her conviction following a bench trial on one

count of assault, a first-degree misdemeanor.

{¶ 2} Schooler advances two assignments of error. First, she contends the trial

court erred in sustaining an objection when she tried to impeach the victim’s testimony

with a prior inconsistent statement. Second, she claims the trial court erred in failing to

find that she acted in self-defense when she sprayed the victim with mace. Therefore,

she argues that her conviction was against the manifest weight of the evidence.1

{¶ 3} The present appeal stems from an incident that occurred inside the rental

office of an apartment complex on September 11, 2019. The first witness at trial was the

victim, Elaine Washington. She testified that she went to the office to complain to Litisha

Thompson, the office secretary, about Schooler’s conduct. When Washington entered the

office, Schooler already was there lodging her own complaint. Washington testified that

she approached the secretary’s window but kept her distance from Schooler. According

to Washington, she was “nowhere near” Schooler and stayed “way far” away from her

inside the office. Washington testified that she and Schooler were not talking to one

another inside the office, and Schooler did not say anything directly to her. Washington

denied making any threats to Schooler, moving toward Schooler, or putting her hands on

Schooler. Washington also denied reaching into her own back pocket, which she claimed

was empty. According to Washington, Schooler suddenly came toward her and sprayed

1 Under her second assignment of error, Schooler references convictions for aggravated menacing and aggravated assault. She was charged with these offenses, however, she was not convicted of them. For present purposes, we will construe her second assignment of error as a challenge to her assault conviction on the basis that she was acting in self- defense. This plainly is what she intends to argue. -3-

mace or pepper spray in her face.

{¶ 4} On cross-examination, Washington confirmed that she did not say anything

to Schooler before being sprayed. Defense counsel then attempted to ask Washington

what she had told a defense investigator the prior day on the telephone. In particular,

counsel asked whether Washington had told the investigator that she had told Schooler,

“No one argues with my sister.” (Trial Tr. at 10.) The prosecutor raised a hearsay

objection. (Id.) Defense counsel responded: “Your Honor, this is actually impeachment.

I’m impeaching her prior inconsistent statement, so it’s not hearsay.” (Id. at 11.) The

prosecutor then argued: “Yeah, but you are using it by your own statements. You don’t

have the person here to testify to those inconsistent statements.” (Id.). The trial court

sustained the hearsay objection, telling defense counsel and Schooler, “You would need

your investigator here to provide that inconsistent statement. Not you. So I’ll sustain.” (Id.)

The trial court also refused to allow defense counsel to impeach Washington with

evidence of her prior conviction for abuse of the 9-1-1 system. The trial court found a lack

of evidence that the offense involved dishonesty or a false statement as required by

Evid.R. 609. (Id. at 11-13.)

{¶ 5} The next witness was Thompson, the apartment complex office secretary.

She testified that Schooler was inside the office talking to her about people outside

“messing” with Schooler. According to Thompson, Washington entered the office and

asked Schooler why Schooler was “messing” with “Keisha” and trying to fight Keisha.

Thomson testified that a conversation ensued between Washington and Schooler. (Id. at

20-21.) Thompson added, however, that the two women stayed four or five steps away

from one another during the conversation. Thompson also testified that Washington did -4-

not threaten or touch Schooler. Thompson did not see Washington reach into a pocket.

According to Thompson, she did hear Schooler tell Washington to get out of Schooler’s

“f***ing face.” Thompson testified that Schooler made this statement despite the fact that

Washington was not in Schooler’s face, as the two women remained four or five feet

apart. (Id. at 21-22.) With the women still this distance apart, and without any threats from

Washington, Schooler sprayed Washington in the face. (Id. at 23.) Thompson

characterized Schooler’s demeanor as “very angry” and “mad” during the encounter,

while Washington was “calm” prior to being sprayed. (Id. at 24.) On cross-examination,

Thompson acknowledged that prior to the spraying, she repeatedly heard Washington

ask Schooler something like, “Why do you want to start with Keisha.” (Id. at 26.)

{¶ 6} The third witness at trial was Lakeisha Burton, the person known as “Keisha.”

She testified about encountering Schooler outside shortly before the macing incident.

According to Burton, Schooler confronted her and began threatening her and acting

aggressively. Burton eventually “argued back.” (Id. at 32.) Schooler subsequently went

into the office where she sprayed Washington and then left. (Id. at 34.)

{¶ 7} The next witness was Michael Schwartz, a police officer with the city of

Dayton. He testified about responding to the spraying incident and speaking with

Washington at the scene. He noticed a strong odor of mace or pepper spray in the office.

He also observed that Washington’s eyes were swollen and watering. Schwartz also

spoke to Schooler, who went to the police station to make her own complaint. According

to the officer, Schooler told him she had used pepper spray in self-defense because

someone was attempting to assault her. (Id. at 52.) Following Schwartz’s testimony, the

State rested. -5-

{¶ 8} The first defense witness was Joanne George, an investigator for the public

defender. George testified about speaking to Washington on the phone the previous day.

The prosecutor initially objected to George testifying that Washington admitted having

made comments to Schooler in the apartment office. Defense counsel argued that the

testimony should be allowed since counsel was not permitted to impeach Washington on

the subject due to the prosecutor’s hearsay objection. Ultimately, the prosecutor dropped

the objection to avoid having a potential issue on appeal. (Id. at 60-61.) George then

testified that Washington had admitted getting in Schooler’s face and arguing about why

Schooler wanted to fight Lakeisha Burton. (Id. at 61.)

{¶ 9} The final witness was Schooler. She testified that on the day in question,

several apartment residents were upset and were taunting her outside, in part because

she had been recording their drug activity. Those residents included Lakeisha Burton.

Schooler explained that she went into the office to report the issue to Thompson. Schooler

testified that Burton and others followed her inside, and the others encouraged Burton to

assault Schooler. According to Schooler, Washington then entered the office and got

directly in Schooler’s face as Schooler backed up. (Id. at 71.) Schooler testified that at

one point someone told Washington to cut Schooler’s face. Schooler stated that

Washington responded by reaching into a pants pocket. Fearing for her life, Schooler

stated that she then sprayed Washington in the face. (Id. at 72.) Schooler testified that

there were people everywhere, that she had no way out of the situation, and that she

repeatedly had asked Washington to get out of her face. (Id. at 72-73.)

{¶ 10} Based on the evidence presented, the trial court found Schooler not guilty

of aggravated menacing and not guilty of menacing. The trial court found her guilty of -6-

misdemeanor assault. It imposed a sentence that included a partially suspended jail term

and credit for time served. The sentence also included a year of probation, a requirement

for a psychological assessment, and a stay-away order.

{¶ 11} In her first assignment of error, Schooler contends she should have been

allowed to impeach Washington’s direct examination testimony about not saying anything

to Schooler inside the office. Specifically, Schooler claims defense counsel should have

been permitted to ask Washington whether Washington told the investigator that she

(Washington) had told Schooler, “No one argues with my sister.” Schooler contends this

inquiry could not have involved hearsay because “Elaine [Washington] is saying what

Elaine [Washington] said.” (Appellant’s brief at 9.)

{¶ 12} Upon review, we are unpersuaded that the testimony sought to be elicited

from Washington could not possibly have been hearsay because she was being asked

about her own out-of-court statement. See, e.g., State v. Grubb, 4th Dist. Lawrence No.

1735,

, *3 (Dec. 12, 1985) (recognizing that “a witness' own statements

made to other persons are no exception to the hearsay rule”). Under Evid.R. 801(C),

“hearsay” is “a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here any

statement concerning what Washington told the investigator she said to Schooler in the

office would be a statement other than one made by the declarant, Washington, while

testifying at trial. What Washington told the investigator she said to Schooler also would

not qualify as non-hearsay under Evid.R. 801(D)(1), because Washington’s statements

to the investigator and to Schooler at the scene were not under oath.

{¶ 13} We doubt, however, that the statement, “No one argues with my sister,” was -7-

offered to prove the truth of the matter asserted. Defense counsel was not seeking to

prove that no one argues with Lakeisha Burton. Rather, defense counsel was seeking to

prove that Washington spoke to Schooler in the office. The truth of what Washington

allegedly said was immaterial. Defense counsel merely wanted to impeach Washington’s

claim that she did not talk to Schooler in the office by establishing that she did say

something, without regard to the truth of the remark. And, if such a statement had been

admitted, it could only have been used for purposes of impeachment and not as

substantive evidence.

{¶ 14} We need not dwell on the foregoing issue, however, because the trial court’s

resolution of it constituted at most harmless error. As set forth above, office secretary

Thompson testified that she overheard Washington ask Schooler why Schooler was

“messing” with “Keisha.” Thompson proceeded to testify about the two women engaging

in a conversation in the office. Even more significantly, the prosecutor dropped his

objection to investigator George testifying about what Washington had said to her on the

phone the prior day. In substance, this testimony was virtually identical to what defense

counsel sought to elicit from Washington. Under these circumstances, we are firmly

convinced that Schooler was not prejudiced by the trial court’s hearsay ruling.

{¶ 15} Under her first assignment of error, Schooler also claims the trial court erred

in not allowing her to impeach Washington with evidence of a 2011 conviction for abuse

of the 9-1-1 system. Schooler argues that the conviction was admissible under Evid.R.

609(A)(3) because the crime involved dishonesty or a false statement. Schooler reasons

that Washington “presumably” was convicted of violating R.C. 2917.32, which involves

knowingly making or reporting a false alarm or knowingly reporting an offense that did not -8-

occur.

{¶ 16} While a violation of R.C. 2917.32 necessarily may involve dishonesty or a

false statement, the record reflects that Schooler was convicted of a different offense,

namely “abuse of the 9-1-1 system.” Although defense counsel did not elaborate on this

offense below, abuse of the 9-1-1 system is a violation of a Dayton city ordinance,

R.C.G.O. 137.12. In relevant part, R.C.G.O. 137.12(A) prohibits using or allowing use of

a telephone “for the purpose of calling the emergency 9-1-1 telephone system other than

in an emergency situation.” The trial court correctly recognized that misusing the 9-1-1

telephone system does not necessarily involve dishonesty or a false statement. That

being so, the trial court did not abuse its discretion in refusing to allow Schooler to use

Washington’s conviction in the absence of facts establishing that Washington’s particular

offense involved dishonesty or a false statement. Because Schooler produced no such

evidence, the trial court correctly sustained the State’s objection to Schooler’s use of the

conviction. The first assignment of error is overruled.

{¶ 17} In her second assignment of error, Schooler contends her assault conviction

was against the manifest weight of the evidence. She argues that the weight of the

evidence established that she acted in self-defense. Schooler claims the only contrary

evidence came from Washington, the victim, who lacked credibility.

{¶ 18} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, 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 -9-

ordered.” State v. Thompkins,

,

(1997). A

judgment should be reversed as being against the manifest weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin,

,

(1st Dist. 1983).

{¶ 19} With the foregoing standards in mind, we conclude that Schooler’s assault

conviction was not against the manifest weight of the evidence. Under R.C. 2903.13(A),

the offense of assault involves knowingly causing or attempting to cause physical harm

to another person. Here Schooler admitted intentionally spraying Washington in the face,

which caused pain to Washington and resulted in her eyes swelling. Based on the record

before us, the trial court certainly could have found that Schooler knowingly caused

physical harm to Washington.

{¶ 20} The only issue was whether Schooler acted in self-defense. Under the

version of R.C. 2901.05 effective March 28, 2019, the State bore the burden to prove

beyond a reasonable doubt that Schooler did not spray Washington in self-defense. “In

Ohio, a defendant is not entitled to a finding of self-defense if (1) the defendant was at

fault in creating the situation giving rise to the affray, (2) the defendant did not have a

bona fide belief that she was in imminent danger of death or great bodily harm and that

her only means of escape from such danger was in the use of such force, or (3) the

defendant violated any duty to retreat or avoid the danger.” (Citations omitted.) State v.

Wallace-Lee, 2d Dist. Greene No. 2019-CA-19,

.

{¶ 21} Here the trial court could have found that the foregoing elements were not

satisfied. At a minimum, the trial court reasonably could have found beyond a reasonable

doubt that Schooler lacked a bona fide belief that she was in imminent danger of great -10-

bodily harm. Contrary to Schooler’s argument, Washington’s testimony was not the only

evidence refuting a finding of self-defense. As set forth above, office secretary Thompson

testified that she witnessed the interaction between Washington and Schooler inside the

office. Thomson recalled that Washington entered the office and asked why Schooler was

“messing” with “Keisha.” Thompson stated that the two women then engaged in

conversation. Thompson testified that the women stayed several feet apart at all times

and that Washington did not threaten Schooler, touch Schooler, or get in Schooler’s face.

Thompson also did not see Washington reach into a pocket for anything. According to

Thompson, Schooler sprayed Washington in the face while the women were several feet

apart and without any preceding threats from Washington. Thompson characterized

Schooler’s demeanor as “very angry” and “mad” during the encounter, while Washington

was “calm” prior to being sprayed. We also note that Thompson’s testimony was at odds

with many aspects of Schooler’s own testimony about what occurred in the office leading

up to the spraying.

{¶ 22} Based on its ruling, the trial court appears to have relied heavily on

Thompson’s testimony in resolving conflicts in the evidence and finding Schooler guilty of

assault. We are mindful that “[b]ecause the factfinder * * * has the opportunity to see and

hear the witnesses, the cautious exercise of the discretionary power of a court of appeals

to find that a judgment is against the manifest weight of the evidence requires that

substantial deference be extended to the factfinder's determinations of credibility. The

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.”

Wallace-Lee at ¶ 38. Here the trial court acted well within its discretion in crediting -11-

Thompson’s testimony, finding no self-defense, and finding Schooler guilty of assault.

Accordingly, the second assignment of error is overruled.

{¶ 23} The judgment of the Dayton Municipal Court is affirmed.

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DONOVAN, J. and WELBAUM, J., concur.

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Andrew D. Sexton Glenda A. Smith Hon. Christopher D. Roberts