[Cite as State v. James,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28892 : v. : Trial Court Case No. 2020-CR-35 : DEONA JAMES : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 2nd day of April, 2021.

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MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

EPLEY, J. -2-

{¶ 1} Defendant-Appellant Deona James was found guilty by a jury of two counts

of felonious assault. After merging the offenses, the trial court sentenced her to five to

seven and one-half years in prison. On appeal, James alleges that the trial court erred by

denying her request for an instruction on aggravated assault, that it erred by not giving a

self-defense instruction, and that she was a victim of prosecutorial misconduct based on

statements made during closing argument. For the reasons that follow, the trial court’s

judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} Around 7 p.m. on December 31, 2019, 20-year-old Caylin Houston had just

finished refueling her car at the Kroger gas station on W. Siebenthaler Avenue when a

blue car, driven by James, pulled in behind her. Almost immediately, James started

blaring her horn and soon got out of her car and began yelling at Houston; James was in

a hurry and wanted Houston to move out of the space so she could put gas in her car.

The gas station security video clearly showed other open pumps.

{¶ 3} Soon, both women were out of their vehicles exchanging words, and the

security video showed the conversation was heated, but not yet physical. Houston

testified that while she was out of her vehicle arguing with James, she noticed that James

had children in her car; not wanting to fight in front of the children, she headed back to

her car to leave. Instead of driving away though, the video showed that Houston quickly

re-emerged from the driver’s seat and threw a bag of candy at James. James responded

by yelling, “I’m gonna beat your ass,” and then charged. Before James got to Houston,

though, she kicked the back bumper of Houston’s car. -3-

{¶ 4} A fight ensued. Houston used her fists, and James had a knife. Each blow

that James dealt resulted in a cut, gash, or puncture. After the altercation ended, a mere

24 seconds later according to the video, Houston did not realize the extent of her injuries

until she noticed the shocked reaction of a bystander, who had her hands covering her

mouth. At that point, Houston looked back at James and saw a knife in her hand. James

fled the scene and Nakisha Coatie, a Kroger employee who witnessed the entire incident,

called 911.

{¶ 5} Coatie testified that she, too, saw a knife in James’s hand and described it

as a box cutter. She also told the jury about the extent of Houston’s injuries. Coatie

disclosed that after the fight Houston was “leaking blood.” The cut on her mouth was so

severe, according to Coatie, that she had to tell Houston to stop talking because “she

couldn’t keep her mouth together to talk.” Trial Tr. at 235. “Her mouth was cut like the

joker.” Trial Tr. at 244. Evidence of the seriousness of the injuries was also apparent from

the scene. Deputy Jesse Walker testified that there were “trails of blood, pools of blood

in the parking lot near her car. There was blood in her car. There was blood on the side

panel of her car.” Trial Tr. at 281.

{¶ 6} Houston was taken by ambulance to Miami Valley Hospital, where she spent

four days recovering from stab wounds to the arm, breast, back, scalp, face, and tongue.

The wounds were so severe that Houston required surgery, and staples were required to

close the gash on the top of her head. Even after she was released from the hospital, she

required home health care nurses. Houston testified that at the time of the trial, months

after the incident, she still received treatment monthly from the plastic surgeon.

{¶ 7} On January 28, 2020, James was indicted on two counts of felonious assault, -4-

in violation of R.C. 2903.11(A)(1) and 2903.11(A)(2), felonies of the second degree. After

an unsuccessful motion to suppress, the case progressed to trial, where James was found

guilty of both counts. At sentencing, the State elected to proceed on Count 1 (felonious

assault – serious physical harm), and James was sentenced to five to seven- and one-

half years in prison. She now raises three assignments of error.

II. Aggravated assault instruction

{¶ 8} In her first assignment of error, James argues that the trial court erred when

it overruled her request for an instruction on the inferior degree offense of aggravated

assault.

{¶ 9} Aggravated assault, R.C. 2903.12, contains elements which are identical to

those of felonious assault, R.C. 2903.11, except it adds a mitigating element of “serious

provocation.” State v. Deem,

,

(1988), paragraph four

of the syllabus. “Provocation, to be serious, must be reasonably sufficient to bring on

extreme stress and the provocation must be reasonably sufficient to incite or arouse the

defendant into using deadly force.”

at paragraph five of the syllabus. To determine if

the provocation was reasonably sufficient to incite the defendant to use deadly force, we

must “consider the emotional and mental state of the defendant and the conditions and

circumstances that surrounded [the defendant] at the time.”

{¶ 10} In a felonious assault trial, an instruction on aggravated assault must be

given to the jury where the defendant “presents sufficient evidence of serious

provocation.” State v. Morrow, 2d Dist. Clark No. 2002-CA-37,

, ¶ 7. The

provocation must be enough to “arouse the passions of an ordinary person beyond the

power of his or her control.” State v. Shane,

,

-5-

(1992). Words alone will not rise to the level of sufficient provocation to incite the use of

deadly force.

at paragraph two of the syllabus.

{¶ 11} The Ohio Supreme Court has discussed what constitutes sufficient

provocation to incite a person into using deadly force. “First, an objective standard is

applied to determine whether the alleged provocation is sufficient to arouse the passions

of an ordinary person beyond the power of his or her control. If that objective standard is

met, the inquiry shifts to a subjective standard to determine whether the defendant in the

particular case actually was under the influence of a sudden passion or rage.”

.

{¶ 12} The trial court’s decision whether to grant the requested jury instruction will

not be disturbed unless it has abused its discretion. State v. Murrell, 2d Dist. Montgomery

No. 24717,

. “Abuse of discretion has been defined as an attitude

that is unreasonable, arbitrary, or unconscionable. It is to be expected that most instances

of abuse of discretion will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.” State v. Malloy, 2d Dist. Clark No. 11-CA-

21,

.

{¶ 13} In this case, James cannot meet the objective prong of the Shane test.

According to testimony and evidence presented at trial, James pulled her car behind

Houston and was already upset. She was in a hurry, claiming her car was about to run

out of gas, and she wanted Houston to pull away immediately. Then, when Houston got

out of her car to argue with James, James became even more irate, as evidenced by the

gas station security video. After more arguing, Houston threw a bag of candy at James,

James kicked the bumper of Houston’s car, and the brawl ensued.

{¶ 14} None of the actions taken by Houston, either on their own or collectively, -6-

rose to the level of a serious provocation that would “arouse the passions of an ordinary

person beyond the power of his or her control.” See

. For instance, no matter

how argumentative Houston got with James, arguing did not rise to the level of “serious

provocation” because, as the Ohio Supreme Court said in Shane, “words alone will not

rise to the level of reasonably sufficient provocation to incite the use of deadly force.”

. Tossing a bag of candy at James did not suffice either. An “ordinary person” simply

would not react in such a violent manner in a similar situation. It was reasonable that

some of Houston’s actions upset James, but an ordinary person would not have

responded by stabbing Houston eight times from that type of provocation.

{¶ 15} James argues that she was sufficiently provoked, and the objective prong

was satisfied, because she was engaged in “mutual combat” with Houston. This,

however, was not “mutual combat.” Black’s Law Dictionary defines “mutual combat” as “a

consensual fight on equal terms – arising from a moment of passion but not in self-

defense – between two persons armed with deadly weapons.” Black’s Law Dictionary

1045 (8th Ed. 2004). “Mutual combat” has also been described as more than a fist fight,

and “usually arises when the parties are armed with deadly weapons and mutually agree

or intend to fight with them.” 40 Corpus Juris Secundum, Homicide § 206. While there is

no question that James had a deadly weapon, there is nothing in the record to indicate

that Houston did. This may have been a consensual fight, but it was not on equal terms,

and only James had a weapon.

{¶ 16} The trial court’s decision was not an abuse of discretion. Even if we might

have reached a different conclusion than the court did, its decision was not unreasonable,

unconscionable, or arbitrary. The record shows that, prior to making its decision on the -7-

aggravated assault instruction, the court heard vigorous arguments from both parties,

researched the issue, and then gave a detailed explanation of its decision on the record.

It was a reasonable decision.

{¶ 17} Because this was not “mutual combat,” and because James failed to

demonstrate that she was sufficiently provoked, the trial court did not abuse its discretion

in refusing to give an aggravated assault instruction. The first assignment of error is

overruled.

III. Self-Defense Instruction

{¶ 18} In her second assignment of error, James claims that the trial court abused

its discretion by not giving a self-defense instruction to the jury.

{¶ 19} R.C. 2901.05(B)(1) establishes that a person may act in self-defense,

defense of another, or defense of that person’s home. “If, at the trial of a person who is

accused of an offense that involved the person’s use of force against another, there is

evidence presented that tends to support that the accused person used the force in self-

defense, * * * the prosecution must prove beyond a reasonable doubt that the accused

person did not use the force in self-defense.” R.C. 2901.05(B)(1).

{¶ 20} To warrant an instruction on self-defense, R.C. 2901.05(B)(1) mandates

that there must be evidence presented that supports the conclusion that the defendant

used force to defend herself. “To establish self-defense, a defendant must introduce

evidence showing that: (1) she was not at fault in creating the violent situation; (2) she

had a bona fide belief that she was in imminent danger of bodily harm; and (3) she did

not violate any duty to retreat or avoid the danger.” State v. Brown,

, 96

N.E.3d, ¶ 24 (2d Dist.), citing State v. Thomas,

,

-8-

(1997).

{¶ 21} It is well established that a person cannot provoke a fight or voluntarily enter

combat and then claim self-defense. State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-

19,

; State v. Nichols, 4th Dist. Scioto No. 01CA2775,

, *3 (Jan. 22, 2002). Another component, within the second prong, “is the

defendant’s bona fide belief that the use of force was the only means of escape. Part of

this entails a showing that the defendant used ‘only that force that [was] reasonably

necessary to repel the attack’ ” Wallace-Lee at ¶ 42, citing State v. Bundy, 2012-Ohio-

3924,

, ¶ 55 (4th Dist.). If the force used was so disproportionate that it

shows a purpose to injure, self-defense is unavailable. Id. at ¶ 43, quoting State v.

Macklin, 8th Dist. Cuyahoga No. 94482,

, ¶ 27.

{¶ 22} Generally, a person has a duty to retreat, if possible, before using lethal

force. State v. Willford,

,

(1990); State v. Dale,

2d Dist. Champaign No. 2012-CA-20,

. The exception, known as

the Castle Doctrine, applies if a confrontation happens in a person’s home, in which case

there is no duty to retreat. R.C. 2901.09(B); State v. Eng, 2d Dist. Montgomery No. 14015,

, *5 (Sept. 30, 1994).

{¶ 23} In the case before us now, James failed to establish any of the elements of

self-defense. She did not meet the first element, that she was not at fault in creating the

violent situation, because she initiated the whole series of events by pulling in behind

Houston at the gas pump and immediately yelling at her to move out of the way. James

had other alternatives: the security video clearly showed many open pumps. She also

initiated the fight by charging at Houston. -9-

{¶ 24} James also did not establish that the use of the knife was the only means

of escape. At any point, before or during the confrontation, James could have de-

escalated the situation and left. She could have returned to her car and driven to a

different pump when she realized Houston was not ready to leave; she could have

returned to her car and left when Houston started arguing with her; she could have

returned to her car and left after Houston threw candy at her; and she could have returned

to her car and left instead of fighting with Houston. There were other means of escape,

James just chose not to use them.

{¶ 25} Finally, because the Castle Doctrine did not apply in this case, James had

a duty to retreat or avoid the danger before escalating to deadly force. At each step along

the way, James could have (but chose not to) avoided the danger. She could have run to

the safety of her car and left, or she could have run to the safety of the store to get help;

instead, she brought a knife to a fist fight and seriously injured Houston.

{¶ 26} Because there was insufficient evidence to support the requested self-

defense jury instruction, the trial court did not abuse its discretion in failing to give it. The

second assignment of error is overruled.

IV. Prosecutorial Misconduct

{¶ 27} In her third assignment of error, James avers that she should be granted a

new trial because the State committed prosecutorial misconduct during its closing

argument.

{¶ 28} We have recognized that “improper prosecutorial comments amount to

misconduct only if they prejudicially affected the substantial rights of the accused.” State

v. Ward, 2d Dist. Montgomery No. 18211,

, *10-11 (Mar. 2, 2001). When -10-

conducting the analysis, the reviewing court should “focus on the fairness of the trial, not

the culpability of the prosecutor.” State v. Reed, 2d Dist. Montgomery Nos. 18417 &

18448,

, *2 (July 20, 2001). When the alleged misconduct takes place

during the State’s closing argument, the appellate court should consider the effect that

“the misconduct had on the jury in the context of the entire trial.” State v. Keenan,

,

(1993).

{¶ 29} Prosecutors are entitled to considerable latitude in opening statement and

closing argument. State v. Ballew,

,

(1996). In

closing arguments, the State may comment freely on “what the evidence has shown and

what reasonable inferences may be drawn therefrom.” State v. Lott,

,

(1990). See also Speigelman, Prosecutorial Misconduct in Closing

Argument: The Role of Intent in Appellate Rev.,

, 134 (1999)

(“The standard for proper closing arguments begins with the concept that they are

opportunities for the parties to present their view of the proper inferences to be drawn

from the evidence presented.”); Am. Bat Assn. Standards for Criminal Justice 3-5.8, cmt.

at 107 (1993) (“The most elementary rule governing the limits of argument is that it must

be confined to the record evidence and inferences that can reasonably be drawn from

it.”).

{¶ 30} Prosecutorial misconduct only constitutes reversible error in rare instances.

. Accordingly, a reversal for prosecutorial misconduct will only occur if it is

clear that the trial’s outcome would have been different if not for the misconduct. State v.

Smith,

,

(1984).

{¶ 31} Here, the statement James highlights was made by the State in its closing -11-

argument, apparently to explain that James used a deadly weapon. The prosecutor

stated:

But whatever she used was a deadly weapon. As I said before, she is slicing

and dicing a 20-year-old girl. You saw her injuries just now. Hitting her on

the top of the head, her mouth, her chest, her tongue. That could have easily

hit her neck, sliced her carotid, and Houston would have been dead.

Trial Tr. at 394. James contends that the prosecutor’s statement was both unsupported

by the record and substantially prejudicial. We disagree.

{¶ 32} In the immediate aftermath of the statement, defense counsel objected, the

court sustained the objection, and the prosecutor went on with her argument. Then, after

the State had completed its first closing argument, defense counsel moved for a mistrial

which was denied by the court. It explained, “[t]he instruction on serious physical harm

includes * * * as part of the definition, any physical harm that carries a substantial risk of

death. So, I’m going to overrule, but note that for the record.” Trial Tr. at 400. The court

went on to instruct the jury that the closing arguments are not evidence, and that

statements stricken by the court should be treated as though they never happened. The

court’s instructions mitigated any harm caused by the prosecutor’s statement. The jury is

presumed to have followed the court’s instructions. State v. Garner,

,

(1995).

{¶ 33} Further, the statement drew from the evidence presented and reasonable

inferences drawn from that evidence. Lott,

,

. To

say that stab wounds to the head, face, and chest could have been fatal was a reasonable

inference. The photos entered into evidence depicted a deep gash that ran from -12-

Houston’s mouth to the side of her face near her jaw-line – an inch or two away from her

neck and vital arteries. Likewise, had the injury to the top of her head been a few

millimeters deeper, her brain might have been impacted. Based on the evidence

presented, the prosecutor’s statement was not improper.

{¶ 34} Finally, the statement did not prejudicially affect the substantial rights of

James. There was sufficient evidence in the record for the jury to find James guilty. The

entire incident was caught on tape, which the jury saw, from James pulling her car behind

Houston and the initial argument, to the physical altercation, to James driving off. The

jury also had the testimony of both women to consider, and they both told essentially the

same story – they argued, things got heated, a fight ensued, and James slashed Houston

with a knife. Finally, there were the pictures that revealed the serious physical harm

inflicted on Houston. Even without the prosecutor’s statement, the verdict would have

likely been the same.

{¶ 35} Because the prosecutor’s statement was not improper, and in the

alternative, even if it was, James was not prejudiced by it, the third assignment of error is

overruled.

V. Conclusion

{¶ 36} Having overruled all of James’s assignments of error, the trial court’s

judgment will be affirmed.

.............

DONOVAN, J. and WELBAUM, J., concur. -13-

Copies sent to:

Mathias H. Heck, Jr. Elizabeth A. Ellis Kristin L. Arnold Hon. Mary Katherine Huffman