[Cite as State v. Porter,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200459 TRIAL NO. 20CRB-16584 Plaintiff-Appellee, :

vs. :

VANECIA PORTER, : O P I N I O N.

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 17, 2021

Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Connor E. Woods, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jon R. Sinclair, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Defendant-appellant Venezia Hill (née Vanieciea Porter) (“Hill”)

appeals her domestic-violence conviction, asserting that the trial court erred by not

granting her Crim.R. 29 motion for an acquittal and that her conviction was

supported by insufficient evidence and was against the manifest weight of the

evidence.

Facts and Procedure

{¶2} Hill and her sister, Shelly Porter, went grocery shopping together. The

sisters got into a verbal altercation in Hill’s car. Outside of Porter’s residence, the

disagreement turned into a physical altercation. After a passerby broke up the fight,

Porter went into her apartment. Hill called 911.

A. Porter’s Trial Testimony

{¶3} Porter testified that, upon arrival at her apartment building, she had

exited from Hill’s vehicle and opened the back door to retrieve her groceries. She had

shut the door before Hill came around the vehicle and got in Porter’s face. Porter was

on the phone with her stepmother during this time.

{¶4} On direct examination, Porter testified that Hill had initiated physical

contact by slapping Porter in the face. She said that Hill had her up against the

vehicle with her hands around Porter’s neck, so she pushed Hill to get her off of her.

Porter stated that Hill had also slammed her into the ground. A passerby stopped to

break up the fight, after which Hill kicked Porter in the stomach. Porter, seven-

months pregnant, then went upstairs to change her pants and check her injuries.

Porter was taken to the hospital to have her injuries examined.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} The state introduced photos that reflected Porter’s injuries. The photos

showed bleeding abrasions on Porter’s face and on her elbow, scratches on her neck,

and multiple abrasions on her foot, which were bleeding and swollen.

{¶6} On cross-examination, Porter denied starting the physical altercation.

But Hill played police officers’ body-worn camera footage (“BWC”), which showed

Porter telling police that she had pushed Hill first because Hill had been in her face.

Porter stated that she had been traumatized by the fight and that she did not

remember them pushing each other. She further stated that she did not remember a

lot of that day, but, based on the BWC, she had initiated contact by pushing Hill.

{¶7} After the state rested its case, Hill moved for a Crim.R. 29 acquittal.

Hill argued that, based on Porter’s agreement that she had pushed Hill first, Hill had

acted in self-defense. The trial court denied Hill’s motion.

B. Hill’s Trial Testimony

{¶8} Hill testified that Porter had slammed her door after Hill exited from

her vehicle to shut the back door. Hill testified that Porter was on the phone when

Porter said, “Oh you’re coming over to fight me?” Hill stated that Porter then

grabbed Hill by her neck, scratching her, and pushed Hill. Hill further testified that

she feared for her safety. Hill stated that she ended up on the ground because Porter

had slammed her. She testified that she had kicked toward Porter not to kick her in

the stomach, but to get free of Porter.

{¶9} On cross-examination, Hill testified that she was behind her car when

Porter had slammed the door. Porter had removed her groceries and was on a call

right before the fight. Hill stated that she could not leave because Porter was trying

to fight her. Hill testified that she suffered scratches to her neck, arm, and elbow.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} At the conclusion of Hill’s testimony, defense counsel renewed the

Crim.R. 29 motion, arguing that the state had not propounded any rebuttal to Hill’s

self-defense claim. The trial court denied the motion and found Hill guilty.

The trial court did not err in overruling Hill’s Crim.R. 29 motion1

{¶11} Hill’s first assignment of error argues that the trial court erred in

denying her Crim.R. 29 motion at the close of the state’s case because the BWC

showed Porter stating that she had shoved her sister first and Porter could not

otherwise remember the details of their fight. Hill presented evidence and testified in

her defense. Thus, she waived her right to challenge the sufficiency of the evidence at

the close of the state’s case. State v. Pope, 1st Dist. Hamilton No. C-180587, 2019-

Ohio-3599, ¶ 3. Accordingly, Hill’s assignment of error is recast to have asserted that

the trial court erred in not granting her Crim.R. 29(A) motion at the close of all of the

evidence.

{¶12} To establish self-defense, defendants have the initial burden of

producing evidence that tends to support that they used force in self-defense. State v.

Davidson-Dixon,

,

(8th Dist.); R.C.

2901.05(B)(1). In a nondeadly force case, the defendant must produce sufficient

evidence tending to support that: 1.) she did not create the situation that caused the

altercation, 2.) she had reasonable grounds to believe, and honestly believed, that

she was in imminent danger of bodily harm, and 3.) the only way to protect herself

from the danger was using force and that she did not use more force than was

1 This court notes that other districts have determined that it is inappropriate to challenge self-

defense under a sufficiency-of-the-evidence review. E.g., State v. Messenger, 10th Dist. Franklin No. 19AP-879,

; City of Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128,

, ¶ 46. But as neither party raised this issue, we do not address it. 4 OHIO FIRST DISTRICT COURT OF APPEALS

reasonably necessary to defend herself against the imminent danger of bodily harm.

Id. at ¶ 21.

{¶13} If the defendant produces such evidence, the state then carries the

burden of persuasion to prove the absence of any of these three elements beyond a

reasonable doubt. State v. Jacinto,

,

(8th

Dist.).

{¶14} Hill presented evidence that tended to support that she did not start

the fight. But Hill did not produce evidence that tended to show that she had a bona

fide belief that she was in imminent danger of bodily harm, that she could only

protect herself by using force, and that she only used the amount of force reasonably

necessary.

{¶15} Hill claims that she exited from the vehicle to close the door and

that she did not leave because Porter was trying to fight her. But she does not

dispute that Porter had removed her groceries and had closed the door before Hill

got to the other side of the vehicle. There is no duty to retreat to avoid danger in

cases involving the use of nondeadly force, even if retreat is possible. Davidson-

Dixon,

,

. But with no imminent danger

posed to Hill as she sat inside of her vehicle—or at any time before she reached the

other side of the vehicle—Hill could have chosen to stay in the car, to stay on her

side of the car, or to leave, rather than to approach her sister. Therefore, we find

that Hill did not have a bona fide belief that Porter posed an imminent threat of

physical harm.

{¶16} Moreover, Hill’s use and amount of force was not reasonably

necessary. While the record shows that Hill only suffered a few scratches, Porter

5 OHIO FIRST DISTRICT COURT OF APPEALS

suffered significant injuries to her face, elbow, and foot, in addition to being kicked

in the stomach, all while being seven-months pregnant. Porter’s injuries warranted

her being transported to the hospital to treat her injuries and to ensure that the fetus

had not been harmed as a result of the altercation.

{¶17} Hill failed to produce sufficient evidence that tended to show self-

defense. Therefore, the court did not err in overruling her Crim.R. 29 motion. Hill’s

first assignment of error is overruled.

The trial court did not err in convicting Hill of domestic violence.

{¶18} Hill’s second assignment of error asserts that there was insufficient

evidence to support her conviction and that her conviction was against the manifest

weight of the evidence.

A. Sufficiency of the Evidence

{¶19} The test for determining the sufficiency of the evidence is whether

“after viewing the probative evidence and inferences reasonably drawn therefrom in

the light most favorable to the prosecution, any rational trier of fact could have found

all the essential elements of the offense beyond a reasonable doubt.” State v.

MacDonald, 1st Dist. Hamilton No. C-180310,

, quoting State

v. Martin,

,

(1st Dist. 1983). It is a question of law

for the court to determine and this court is not to weigh the evidence unless, after

viewing the evidence, it weighs heavily against conviction. MacDonald at ¶ 12.

{¶20} Hill contends that there was insufficient evidence to support a

conviction for domestic violence because Porter, the only witness for the state,

testified that she did not remember the details of the physical fight and that she had

initiated contact by pushing Hill first. Hill further argues that the state failed to 6 OHIO FIRST DISTRICT COURT OF APPEALS

disprove Hill’s self-defense claim.

{¶21} We have already determined that Hill failed to produce sufficient

evidence that tended to support her self-defense claim. Therefore, the state had no

burden to disprove self-defense. We therefore turn to whether the state provided

sufficient evidence to prove domestic violence.

{¶22} Hill was convicted of domestic violence under R.C. 2919.25(A), which

provides, “No person shall knowingly cause or attempt to cause physical harm to a

family or household member.” The slightest injury is sufficient to prove physical

harm. State v. Daniels,

,

(1st Dist.).

{¶23} The evidence was sufficient to support all of the elements of R.C

2919.25(A). Hill and Porter are sisters who lived together as children. Hill knowingly

caused physical harm to Porter’s face, arm, and foot and she kicked her in her

stomach. Porter’s injuries were significant enough to warrant medical attention,

particularly due to the risk that the physical harm could have posed to her fetus. We

therefore find that the trial court had sufficient evidence upon which to base its

guilty finding.

B. Weight of the Evidence

{¶24} In reviewing a weight-of-the-evidence claim, this court must review

“the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the 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. Bailey, 1st Dist. Hamilton No. C-140129,

, quoting

State v. Thompkins,

,

(1997).

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶25} The weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. Bailey at ¶ 63. In reviewing a challenge to the weight of

the evidence, this court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton

No. C-180493,

, quoting Thompkins. However, this court will

not substitute its judgment for that of the trier of fact on the issue of witness

credibility unless it is patently apparent that the trier of fact lost its way in arriving at

its verdict. Bailey at ¶ 63.

{¶26} Hill contends that there was no credible evidence to support a

conviction for domestic violence because Porter, the only witness for the state,

discredited her testimony when she testified that she did not remember the details of

the physical fight and that she had initiated contact by pushing Hill.

{¶27} The state offered credible evidence to support Hill’s domestic-violence

conviction. As discussed above, the state did not need to prove the absence of self-

defense because Hill failed to produce sufficient evidence that tended to show self-

defense.

{¶28} The testimony and photographs offered at trial support that Hill

caused injuries to Porter’s face, arm, and foot. Indeed, Hill did not deny that she

caused Porter’s injuries. Instead, she asserted that she was acting in self-defense. We

therefore find that the evidence was credible and the trial court did not patently lose

its way in finding Hill guilty of domestic violence.

{¶29} Hill’s second assignment of error is overruled.

8 OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶30} Hill’s conviction was supported by sufficient evidence. The trial court

properly overruled Hill’s Crim.R. 29 motion and found Hill guilty of domestic

violence. We therefore affirm the trial court’s judgment.

Judgment affirmed.

BERGERON, P.J., and CROUSE, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion

9