Opinion
22-CA-00044
08-15-2023
STATE OF OHIO Plaintiff-Appellee v. TINA CREMEANS Defendant-Appellant
For Plaintiff-Appellee JOSEPH M. SABO For Defendant-Appellant BRANDON C. KEYS
Appeal from the Court of Common Pleas, Case No. 22-CRB-01173
For Plaintiff-Appellee JOSEPH M. SABO
For Defendant-Appellant BRANDON C. KEYS
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J.
OPINION
KING, J.
{¶ 1} Defendant-Appellant Tina Cremeans appeals the November 8, 2022 judgment of conviction and sentence of the Fairfield County Municipal Court. Plaintiff-Appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} This matter arose on August 21, 2022 when Q.S. was mowing grass on a property across an alley from Cremeans' garage. The mower launched some rocks into the side of Cremeans' garage, damaging the siding. Cremeans became angry with Q.S., an African-American man, and launched a verbal assault using racial slurs. Q.S.'s wife, T.S., heard the commotion and went to investigate.
{¶ 3} Once T.S. was present, Cremeans continued her verbal assault and included taunting to step on her property and "see what happens." T.S. stomped her foot down just in front of the property line. As she did, her hands were at her sides and her face was towards the ground. Cremeans stepped forward onto T.S.'s foot and slapped her across the face hard enough to send T.S.'s glasses sailing across the alley. Neither T.S., nor Q.S. retaliated.
{¶ 4} While all of this was happening, a bystander, A.V., was in her car, parked in the alley. She took a video of the event.
{¶ 5} Police arrived and placed Cremeans under arrest for assault. The following day, Cremeans pled not guilty to one count of assault pursuant to R.C. 2903.13(A), a misdemeanor of the first degree.
{¶ 6} On October 6, 2022, counsel for Cremeans filed a Defendant's Notice of Self-Defense outlining Cremeans' intent to claim she acted in self-defense. The state did not respond in writing, nor did it raise any argument regarding the timing of the notice at any time during trial.
{¶ 7} Cremeans elected to proceed to a jury trial which took place on October 13, 2022. The state presented testimony from T.S. and A.V., and played the video taken by A.V. Cremeans testified on her own behalf and alleged that T.S. lunged at her and therefore she defended herself. At the close of testimony, counsel for Cremeans requested a self-defense instruction. After first granting the motion, the trial court took a recess to review the video. After viewing the video, the trial court reversed itself and denied the request. It found Cremeans was the aggressor, and further that her testimony was not credible. Following deliberation, the jury returned a verdict of guilty.
{¶ 8} Cremeans requested and received a stay of sentence pending this appeal. She raises one assignment of error for our consideration as follows:
I
{¶ 9} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION FOR SELF-DEFENSE INSTRUCTION."
{¶ 10} In her sole assignment of error, Cremeans argues the trial court erred by denying her motion to provide the jury with a self-defense instruction. We disagree.
Untimely Filing
{¶ 11} We must first address the state's argument regarding Cremeans' failure to timely file a notice of intent to argue self-defense. Crim.R. 12.2 states:
Whenever a defendant in a criminal case proposes to offer evidence or argue self-defense, defense of another, or defense of that
person's residence, the defendant shall, not less than thirty days before trial in a felony case and fourteen days before trial in a misdemeanor case, give notice in writing of such intent. The notice shall include specific information as to any prior incidents or circumstances upon which defendant intends to offer evidence related to conduct of the alleged victim, and the names and addresses of any witnesses defendant may call at trial to offer testimony related to the defense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant related to the defense, unless the court determines that in the interest of justice such evidence should be admitted.
{¶ 12} While the state argues the trial court correctly denied Cremeans' request due to her untimely notice, it does so for the first time here on appeal. The state never responded to Cremeans' untimely written notice, nor did it raise the issue of the untimely filing at any point during trial. We therefore decline to consider the state's argument.
Self-Defense Jury Instruction
{¶ 13} A defendant is entitled to an instruction on self-defense when evidence has been presented that tends to support the defendant acted in self-defense. State v. McCallum, 10th Dist. Franklin No. 19AP-796, 2021-Ohio-2938, ¶ 38. "[Similar] to the standard for judging the sufficiency of the state's evidence, if the defendant's evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements of a self-defense claim when viewed in the light most favorable to the defendant, then the defendant has satisfied the burden." State v. Messenger, 2022-Ohio-4562, ____ N.E3d ____, ¶ 25, citing State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999); State v. Robinson, 47 Ohio St.2d 103,109-112, 351 N.E.2d 88 (1976). "A defendant charged with an offense involving the use of force has the burden of producing legally sufficient evidence that the defendant's use of force was in self-defense." Id. at ¶ 25. However, "[a] bare assertion by the defendant that he acted in self-defense will not bring the affirmative defense of self-defense into issue in the trial." State v. Jacinto, 2020-Ohio-3722, 155 N.E. 3d 1056, ¶ 47, (8th Dist.) quoting State v. Gideons, 52 Ohio App.2d 70, 73, 368 N.E.2d 67 (8th Dist.1977).
{¶ 14} When reviewing a record to determine whether there is sufficient evidence to support providing an instruction, "an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." State v. Patterson, 11th Dist. Trumbull No. 2022-T-0092, 2023-Ohio-2350, ¶ 73, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991).
{¶ 15} To support a claim of self-defense involving the use of non-deadly force, a defendant must show that "(1) he was not at fault in creating the situation giving rise to the affray; (2) he had reasonable grounds to believe or an honest belief that he or she was in imminent danger of bodily harm, and (3) he did not use more force than was reasonably necessary to defend against the imminent danger of bodily harm." State v. Paskins, 200 N.E.3d 684, 2022-Ohio-4024, ¶ 48 (5th Dist.). Self-defense is an affirmative defense - not an element of a crime. State v. Messenger, 2022-Ohio-4562, ____ N.E.3d ____ ¶ 24.
Evidence Presented by Cremeans
{¶ 16} Cremeans' case-in-chief consisted solely of her own testimony. She stated she was fearful, that Q.S. threatened to kill her, and T.S. threatened to "beat [Cremeans'] ass." Transcript of trial (T.) 125, 140, 122. Confronted on cross-examination with the video of the event, Cremeans admitted to telling T.S. to "step on there" at one point, but otherwise maintained she was telling T.S. and Q.S. to stay off her property, even though that is not evident in the video. T. 135. Cremeans testified she struck T.S. because T.S. lunged at her. T. 125. The state's evidence showed the lunge occurred when Cremeans dared T.S. to "put [her] foot there" while pointing at her property line and T.S. stomped her foot down just in front of Cremeans' property line. State's exhibit A.
The Trial Court's Findings
{¶ 17} The trial court initially found the defense had "barely met the burden" of production but it would nonetheless include the self-defense instruction. T. 156. But because the trial court was unable to properly view the video of the incident during trial, it took a recess to view it. T. 161. After reviewing the video, the trial court reversed its ruling and denied Cremeans' request for a self-defense jury instruction. The trial court explained as follows:
The Court: Okay. I appreciate it [counsel for Cremeans]. I will clarify or whatever. I know you kept stating or whatever that I'm basing it on testimony. I'm basing it almost primarily on the video itself. I do not
believe if I discount or whatever the testimony that's been presented as I stated, or whatever, I'm basing it on the video. So I don't want any conflict or whatever in the record - - any confusion in the record for purposes of appeal. I am telling the Fifth District right now that watch the video [sic]. And if you watch the video, I think that's all the evidence you need to see that Ms. Cremeans is not in fear for her safety. Ms. Cremeans was taunting folks or whatever to just walk onto my property so I can, I guess, attack you. I don't know. But I saw no fear in the Defendant whatsoever on that video. And the video captured the incident, you know. So that is what I'm mostly my evidence or what I was saying in addition to the testimony is the Defense hadn't reached that point before they put on their case in chief or whatever of putting on any evidence of self-defense. Ms. Cremeans's testimony was basically what you put on to try and establish self-defense and I was, with regard to her testimony or whatever, just saying it is - - gets discounted because she's convicted of falsification. So that's what I'm saying just for purposes of clarification.
{¶ 18} T. 166.
Cremeans Did Not Produce Sufficient Evidence to Warrant a Self-Defense Instruction
{¶ 19} Upon consideration of the entire record, we find the trial court did not err in declining to provide a self-defense instruction. While we agree with Cremeans that the trial court's consideration of her credibility in arriving at its decision was improper, ("In deciding whether to give a self -defense instruction, the trial court must view the evidence in favor of the defendant, and the question of credibility is not to be considered." State v. Davidson-Dixon, 8th Dist., 2021-Ohio-1485, 170 N.E.3d 557, ¶20) we nonetheless find the trial court arrived at the correct conclusion.
{¶ 20} Cremeans' evidence consisted only of her own self-serving statements. As recently noted by our brethren in the Eleventh District "[i]f a defendant could blankly assert, without corroborative supporting evidence, that his or her use of force, which is the basis for a criminal charge, was a result of self-defense, any and all defendants so charged would be entitled to a self-defense instruction without any evidence beyond the self-serving claim." State v. Patterson, 11th Dist. Trumbull No. 2022-T-0092, 2023-Ohio-2350, ¶ 81. In other words, a defendant's bare assertion that force was necessary for self-defense does not automatically entitle the defendant to a jury instruction of self-defense.
{¶ 21} In this situation there was video and witness testimony supporting the trial court's determination. To the point, the video of the incident does not support Cremeans' claim that she was in fear of physical harm and was not at fault for creating the situation giving rise to the assault. Rather, the video shows Cremeans striding boldly and animatedly back and forth across her property line while simultaneously inviting conflict by taunting Q.S. and T.S. Cremeans therefore failed to produce sufficient evidence to show her use of force was in self-defense. This case does not require us to consider whether the refusal to give a self-defense instruction would be improper when the only evidence a defendant can produce is the defendant's own testimony. That situation may require a different analysis which we do not undertake today.
{¶ 22} The sole assignment of error is overruled.
{¶ 23} The judgment of the Fairfield County Municipal Court is affirmed.
King, J., Gwin, P.J. and Baldwin, J. concur.