Opinion
Appellate Case No. 28617
11-06-2020
STATE OF OHIO Plaintiff-Appellee v. KIMBERLY ROBINSON Defendant-Appellant
MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant Prosecuting Attorney, City of Dayton Prosecutor's Office, 335 West Third Street, Suite 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee FRANK MATTHEW BATZ, Atty. Reg. No. 0093817, 126 North Philadelphia Street, Dayton, Ohio 45403 Attorney for Defendant-Appellant
Trial Court Case No. 2019-CRB-2855 (Criminal Appeal from Municipal Court)
OPINION
MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant Prosecuting Attorney, City of Dayton Prosecutor's Office, 335 West Third Street, Suite 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee FRANK MATTHEW BATZ, Atty. Reg. No. 0093817, 126 North Philadelphia Street, Dayton, Ohio 45403 Attorney for Defendant-Appellant DONOVAN, J.
{¶ 1} Kimberly Robinson appeals from her conviction of one count of assault in the Dayton Municipal Court, following a jury trial; the offense was a misdemeanor of the first degree. The trial court imposed a sentence of 180 days, gave Robinson credit for 94 days, and suspended 86 days. The court imposed a period of intensive supervised probation for two years and ordered Robinson to obtain a psychological assessment and follow any treatment recommendations. We hereby affirm the judgment of the municipal court.
{¶ 2} On June 13, 2019, Robinson was charged by way of complaint, and she entered a plea of not guilty on the same day. On June 21, 2019, Robinson's attorney filed a motion for competency and sanity evaluations, and the court granted the motion. On July 18, 2019, defense counsel stipulated to the findings in the report from the Forensic Psychiatry Center for Western Ohio, and the court found Robinson incompetent to stand trial but restorable to competency, and it ordered treatment. The court committed Robinson to Summit Behavioral Healthcare in Cincinnati and stayed the proceedings.
{¶ 3} On September 10, 2019, the municipal court issued an amended entry ordering a sanity evaluation for Robinson, specific to her mental condition at the time of the offenses.
{¶ 4} On October 30, 2019, defense counsel filed a motion to dismiss, asserting that Robinson was not brought to trial within 90 days of her arrest.
{¶ 5} On October 31, 2019, the court filed an entry stating that it had reviewed a report from the forensic examiner, which concluded that Robinson was not legally insane at the time of the offense, and the court agreed with this conclusion. The court also found Robinson competent to stand trial. Her trial was held on October 31 and November 1, 2019.
{¶ 6} Steven Miller, a bailiff with the Dayton Municipal Court, testified that his duties included posting notices of and enforcing evictions. Miller testified that he had a police background, having been previously employed by the Dayton Police Department for more than 26 years. He testified that, in the course of his career with the police department, he had supervised or worked in every unit except for the horse patrol, including working as a burglary detective, a homicide detective, and in internal affairs.
{¶ 7} Miller testified that a landlord or homeowner can initiate an eviction by posting at the tenant's residence a notice advising the tenant that he or she has three days to vacate the premises. Miller testified that, if the tenant does not vacate the premises, the landlord can then file a formal request for eviction and obtain a court date for a hearing. According to Miller, a residential notice with the court date would then be issued advising the tenant to appear in court for the hearing; if it is determined in court that eviction is appropriate, the landlord has "to file for the formal eviction notice to go through process" and pay a bond. Miller testified that the clerk's office generates the paperwork, and upon receipt thereof, he or another bailiff sets the date for the eviction and advises the landlord.
{¶ 8} Miller testified that, on June 4, 2019, he went to 1430 Princeton Drive, where Robinson resided, to post a notice of eviction (State's Exhibit 1). He testified that a copy was also mailed to Robinson at the Princeton Drive address. Miller testified that Exhibit 1 reflects that it was posted on June 4, 2019, and he identified his signature on the notice; he taped the notice to the front door of the home. The notice advised Robinson that she was required to vacate the premises by June 10, 2019, at 11:59 P.M. Miller testified that he circled the date on the notice, as well as the advisement on the notice that any property left at the residence at the time of the eviction would become the property of the landlord.
{¶ 9} Miller testified that he again went to the Princeton Drive property on June 11, 2019, at 10:15 a.m. He took with him a copy of the eviction notice that he had previously posted and a copy of a Writ of Restitution (State's Exhibit 2), "[j]ust in case someone challenge[d] whether or not they were supposed to be evicted," because sometimes all the members of a household have not been told that an eviction is about to occur. Miller testified that he met the property owner, Doreen Young-Jiles, at the address; she had three men with her to help move things out of the home, if necessary.
{¶ 10} Miller identified a photograph of the residence on Princeton Drive (State's Exhibit 3). He stated that he opened the screen door and banged on the front door once, announced himself as a bailiff, banged on the door a second time, and said "Bailiff's Office." Miller testified that "somebody opened up the curtain that was at the door"; Miller "could see a face" and repeated that he was with the Bailiff's Office. He informed the person that he was there for the eviction, and she (Robinson) responded that he was not a bailiff. Miller repeated that he was the bailiff, then raised his chest and pointed to a bailiff's patch on his vest. Miller stated that he wore a bullet proof vest issued by the court. Miller testified that he also wore a radio hooked to a microphone and his badge, which states "Deputy Bailiff, Municipal Court, Dayton" and includes his badge number. Miller showed his badge to the jury.
{¶ 11} Miller testified that Robinson told him that she was going to call the FBI because he was not a bailiff. Miller asked Young-Jiles to open the door with her set of keys, but the locks had been changed. According to Miller, Robinson did not ask to see his credentials or any paperwork to confirm the eviction; she just continued to "holler" that he was not a bailiff and that she was going to call the FBI. Based upon their inability to gain access to the residence, Miller radioed the Dayton Police dispatch center and requested that a crew respond to the scene for assistance.
{¶ 12} Miller stated that the screen door to the home remained open. After he heard "the mechanical sounds of the locks being manipulated," Robinson reached out from the front door and attempted to close the screen door. Miller testified that, when the door opened, he "stepped up" to go into the residence to initiate the eviction, and he was "struck" on the right side of his face twice as his second (right) foot "entered the threshold of the door." Miller testified that he was a foot or less away from Robinson at the time, and he was hit in the area of his right temple and eye. When asked to describe the force used, Miller testified that Robinson "got my attention. She struck me hard enough * * * it didn't daze me but I was like taken aback * * *." In response, Miller "defended" himself by striking Robinson twice in the nose/forehead "to daze her," and then he "took her to the floor." Miller testified that, in his police career, he had learned how to control combative persons, and that putting them on the ground was a "good way to control them" until help arrived and to prevent injury to oneself. Miller testified that he tripped Robinson with his right leg; when she was on the ground, he first attempted to get her left hand behind her so that he "could initiate a handcuff protocol," but Robinson tucked her left arm underneath her body, so Miller lay his body weight on her "just to keep her down on the ground." He stated that Robinson was on her belly and kept trying to push herself back up with her right arm. He placed his right hand on her right hand so that she could not strike him. Miller testified that his left arm was where her shoulder and neck met. Miller denied trying to choke Robinson. He testified that she was "screaming at me to get my fat ass off of her."
{¶ 13} Miller testified that an adult male, later identified as Lamond Boyd, appeared from the back of the house and stood within two or three feet of him. Miller testified that Robinson was yelling at Boyd to get Miller off of her, and Miller told Boyd "he didn't want to do that." Miller testified that if Boyd had intervened, he (Miller) would have had to "take more stringent measures to protect" himself. According to Miller, Boyd told Robinson that Miller was a bailiff, and the next thing Miller knew he was being bitten by Robinson on the right forearm; Miller stated that Robinson "chomped" down on his arm. Miller told Robinson to stop biting him, or words to that effect, and then Miller bit Robinson on her right shoulder blade to get her to release his arm from her teeth. When Miller bit Robinson, she released his forearm. Miller testified that Boyd called 911 at Robinson's urging, and a recording of the call was played for the jury.
{¶ 14} While Miller was still on the floor with Robinson, Bailiff Churchill Hale arrived and ushered Boyd out of the house. Moments later, a Dayton Police detective arrived and helped Miller handcuff Robinson; the detective then removed her from the premises. Miller testified that he proceeded through the home to make sure no one else was present, or any pets or contraband. Miller stated that he observed the eviction notice he had posted the week before in the home. He testified that it was on a "table looking structure with a hunting knife on it," and he identified a photograph of it.
{¶ 15} Miller testified that, in the course of gaining control of Robinson, he sustained a wound in the eyebrow area of his right eye where Robinson struck him and a scratch on his right cheek. He also stated that his right hand was broken and that he had two distinct bite marks on his right forearm from Robinson's mouth. He identified photographs of his injuries. Miller testified that he drove himself to the hospital for treatment.
{¶ 16} When asked what his purpose was in initially entering the home, Miller stated, "As I've done hundreds of time before, once you go inside and it's occupied, you advise them that you are there to do the eviction and that they * * * were supposed to have gone the night before * * *. Then, you work with them to get them out." When asked why he did not wait for the police to arrive before taking action, he responded that he had never been attacked before and "didn't give walking into the property a second thought" because he did it all the time. Miller testified that, pursuant to the Writ of Restitution, he was at the property "as a spokesman for the court" to see that the order was enforced, and that he was entitled to enter the premises without the tenant's permission to effect the eviction.
{¶ 17} On cross-examination, Miller testified that his bailiff patch was removable, and he reiterated that Robinson did not ask to see his credentials. After reviewing his report of the incident and being asked again about whether Robinson asked to see his credentials, Miller responded, "If that's what the report says, yes." Miller also testified that he did not show Robinson his badge, which he wore on his hip, and that he had court-issued identification in his pocket, but he did not retrieve it to show Robinson. When asked why he did not show Robinson the eviction paperwork in his vehicle, Miller responded, "Did not get that opportunity, you are correct."
{¶ 18} Miller testified that Young-Jiles advised him that she was Robinson's aunt. He acknowledged entering the doorway when Robinson opened the door and that Robinson did not give him permission to enter. Miller stated that he punched Robinson in the face with a closed fist after she struck him. Miller stated that his full body weight of 270 pounds was on top of Robinson when they were on the floor. He denied that Robinson was able to bite him because his arm was around her neck; he testified that her head was near his forearm. Miller testified that Robinson "had to be threatened" with a Taser that was in the detective's possession in order to be handcuffed. When asked if he should have just waited for the police to arrive to enforce the eviction, Miller responded, "I guess you could say, in retrospect, that would have been an option."
{¶ 19} On redirect examination, Miller testified that he did not violate any duty as a bailiff when he entered the home in the manner he did. He stated that he executed approximately 15 evictions a week and had done so for two years, and that he enters homes in a comparable manner about one-third of the time. Miller stated that Robinson's was the first eviction where he was required to use force.
{¶ 20} Doreen Young-Jiles, who resides in Georgia, testified that she purchased the Princeton property in 2005 for her mother. Young-Jiles testified that, in 2014, she had "basically gutted out" the house and "redone" it. Robinson moved into the home pursuant to a verbal agreement that she pay $500 per month in rent and allow Young-Jiles to stay in the home when she was in town two or three times a year. Young-Jiles stated that the eviction notice was for non-payment of rent.
{¶ 21} According to Young-Jiles, she began the eviction process in January 2019; at that time, she came to Dayton "prior to getting ready to start some chemo," and Robinson called the police on her for trespassing at her property. Robinson stated that she did not follow through which the eviction that January because I had to go back to Georgia, but at the end of March or in April, she had the three-day notice posted at the house, which she identified as State's Exhibit 17. The "Notice to Leave Premises" was dated April 26, 2019; it advised Robinson: that she was being asked to leave the premises, and that an eviction action might be initiated against her if she did not leave. The notice directed Robinson to vacate the premises on or before May 1, 2019, but Robinson did not do so.
{¶ 22} Young-Jiles testified that she attended the eviction hearing, but that Robinson did not. She stated that after the eviction was granted, she paid a fee "to have a set out service done by the bailiff." Young-Jiles testified that she proceeded to the property on June 11, 2019, and that Miller introduced himself to her there. She testified that Miller had "a big Bailiff written across the front" of his vest, and "you can't help but see it." Young-Jiles had brought two men to help move Robinson's belongings out of the home, as well as a locksmith and a friend. Young-Jiles's testimony was consistent with Miller's that he knocked on the door and identified himself, that Robinson refused to believe Miller was a bailiff and threatened to call the FBI, that her key did not work, and that the "brand-new sparkling lock" was not the one that had been on the door previously. Young-Jiles testified that Robinson did not ask to see the eviction paperwork, but she did ask to see Miller's badge. She stated that, in response, Miller "kind of pumped up the Bailiff wording" on his vest for Robinson to see.
{¶ 23} According to Young-Jiles, Robinson "end up opening the door," and when she did so, Miller was inside the screen door, which Robinson tried to close; Miller and Robinson "end up in the house on the floor." Young-Jiles stated that she observed Boyd emerge from the back of the house, and when he asked what was going on, she said, "what you think going on. You see she down there beating his ass." Young-Jiles then told the men she had brought with her "to come up here and help this man."
{¶ 24} Young-Jiles stated that she did not observe Robinson strike Miller or Miller strike Robinson, and that they were side by side on the floor. When no one intervened on Miller's behalf, Young-Jiles stepped off the porch and called 911 "so the officer could get some help." When asked if it appeared that Robinson had acted to defend herself, Young-Jiles responded, "No, not from what I saw from the initial point of contact, no." Young-Jiles did not observe Miller choking, strangling, or physically assaulting Robinson. A recording of Young-Jiles's 911 call was played for the jury.
{¶ 25} Young-Jiles testified that, after Robinson was in custody, she and Miller walked through the house and garage. She stated that one bedroom was empty, but a bed was set up in the other room with a blanket on it. Young-Jiles testified that the living room was "in disarray," that it had "a couch, chair, things of that nature," and that the kitchen "still had dishes and things like that in there" and food in the cabinets.
{¶ 26} On cross-examination, Young-Jiles testified that she first directly told Robinson face-to-face that she had to leave the home in January 2019. She testified that a friend posted the second notice in April 2019, and that she filed the paperwork with the court at that time. Young-Jiles testified that Robinson did not verbally grant Miller permission to enter the home, and when asked if she "made any hand signals to come on in," Young-Jiles responded, "the only signal that I saw was when the door was being closed with [Miller] in it." Young-Jiles acknowledged that she did not observe the entire encounter between Miller and Robinson because she had left the porch to call 911. Young-Jiles acknowledged that, at one point during the 911 call, she said "they got him down," referring to Miller, but she denied that Boyd had participated; when she said "they," she meant "the tenant."
{¶ 27} On redirect examination, when asked about Robinson's asking to see Miller's badge, Young-Jiles responded, "I don't know what she asked him but what she asked him was to identify himself. Now, if she said the exact word badge, I don't know. I don't remember her saying the exact word badge."
{¶ 28} Churchill Hale, an "eviction bailiff" with the Dayton Municipal Court, had previously worked for the sheriff's office, then the Dayton Police Department. He had participated in around 750 evictions. He testified that, on June 11, 2019, he was en route to an address on Euclid Avenue when he heard Miller on the radio; as a result, Hale proceeded to the Princeton Drive address. Hale testified that, as he turned onto Princeton, he expected to see police officers, but instead he just observed people "pointing towards the residence." When Hale entered the home, Miller and Robinson were on the floor, and Boyd was standing over them with a cell phone in his hand. Hale testified that Officer Justin Hayes, in uniform, came through the door and removed Boyd.
{¶ 29} Hale stated that Miller's right arm was holding down Robinson's right arm, and her left arm appeared to be underneath him. Hale stated that Robinson was "struggling," and "hollering get this fat mother f***** off of me." Hale testified that Miller was not doing anything to cause physical harm to Robinson. He stated that Officer Chad Jones, in plain clothes, entered the residence, and that Hale obtained Miller's handcuffs. Hale testified that Robinson continued to struggle, and Jones put his Taser on her and threatened to taze her if she did not stop struggling. She continued to struggle. At that point, Jones "did the light and the DA-DA-DA-DA-DA-DA-DA," (apparently beginning to activate the Taser), which got Robinson's attention, and she allowed herself to be handcuffed.
{¶ 30} Hale testified that after Robinson was removed from the residence, he turned his attention to Miller, who had "blood coming down his face." Hale observed bite marks on Miller's arm, and Miller complained about his hand hurting. Hale further testified that Miller had a scratch on his face with a little bit of blood.
{¶ 31} Hale further testified that, when he arrived on the scene, Young-Jiles was across the street from the home. He stated that he walked through the house and later spoke to Young-Jiles, the two movers who were with her, Boyd, and the locksmith. Hale testified that it did not appear that anything had been packed up in the home. He stated that he observed the eviction paperwork in the living room. Hale took cell phone video of the interior of the residence, and the recording was played for the jury.
{¶ 32} At the conclusion of the State's case, defense counsel moved for an acquittal, arguing that the State did not meet its burden to show "that self defense was not used." The trial court overruled the motion.
{¶ 33} In Robinson's defense, Boyd testified that he was a friend of Robinson and that he was at the Princeton Drive address that day because Robinson "had had previous evictions, notices," and he was "there to make sure that if this was a real eviction, that [he] could pack up her stuff" and get it where it needed to go. Boyd testified that he had been at the house one other time for the same reason.
{¶ 34} Boyd testified that he was in bed when he heard the knock on the door; Robinson went to the door and asked who was there, and Miller said "the bailiff." Boyd stated that he heard Robinson ask to see Miller's credentials. Boyd testified that, as he was standing in the doorway of the bathroom, he "could see someone had a key in the door and the knobs were turning, they were pushing and pulling on the door like someone was trying to get in." He stated that Robinson went to the window and said "you're not the police. That's not even the police car."
{¶ 35} Moments later, Boyd heard a "boom," saw Miller "busting in the door," and saw Miller and Robinson "begin to exchange blows, going back and forth," "wrestl[ing] [and] tussl[ing] a little bit," and then they ended up on the floor. Boyd stated that he did not know who threw the first punch because "it happened so fast." According to Boyd, Miller got Robinson in some type of hold, and he was on top of her with his hand around her neck. Boyd stated that Robinson repeatedly told him to call the police, and that he called 911. A copy of the call was played for the jury. In the course of the 911 call, Boyd asked Miller why he was being so rough with Robinson; Boyd explained at trial that he had been "trying to plead with" Miller, because Robinson "just a woman," and "the way he had her it was a difficult position but he had her and he was choking her."
{¶ 36} Boyd testified that, when Miller initially entered the residence, he (Boyd) did not know what was happening, "if it was a robbery, or if this was an ex jealous boyfriend." When asked why he did not intervene to help Robinson, Boyd replied, "Because it was a small * * * chance that this might actually be a Bailiff and if so * * * that would mean real trouble for me." Boyd testified that he was escorted out of the home by an officer and placed in a police car; from the car, he observed Robinson come out of the home in handcuffs with a bloody nose. Boyd testified that he drove a truck to Robinson's home that day to help her move her stuff in case of an eviction; he stated that "everything was packed up in the front room."
{¶ 37} On cross-examination, Boyd testified that he had brought his truck over to Robinson's home the previous day, but no storage containers or belongings had been placed in his truck. He stated that Robinson did not tell him that the eviction notice required her to be out of the home on June 10. Boyd stated that Miller identified himself as the bailiff, "as if to say, I don't have to show you anything." Boyd acknowledged that he could not see Miller on the other side of the door until the door was opened. When asked if he observed Robinson open the door, Boyd responded that Miller used force, "using his shoulder, elbow, and hands" to push his way in.
{¶ 38} Boyd testified that "you hear [Robinson] choking" on his 911 call, and he told the operator that Miller was choking Robinson. Boyd testified that he did not see Robinson bite Miller. Boyd identified the written statement he provided to the police, and he acknowledged that it did not recount that Miller had choked Robinson; Boyd said that he "wrote something short and sweet" because he wanted to get out of there, with "police everywhere." He also stated that he was interviewed by Officer Hale but did not tell Hale that Miller had choked Robinson. Boyd testified that he was a convicted felon. On redirect examination, Boyd testified that nothing had been removed from the house in his truck because, if it were "a real eviction," then they would have used the truck to take Robinson's stuff to storage.
{¶ 39} Robinson also testified on her own behalf. She testified that her agreement with Young-Jiles was for Robinson to pay off the loan Young-Jiles gave Robinson to remodel the house. She stated that before the remodel, the house was uninhabitable and "infested with pests, bugs, roaches, rodents, the pipes were outdated." Robinson stated that she was to pay $500 per month until a balance of $7,000 was paid off, and then Young-Jiles "would transfer the house into my name." Robinson stated that, in the event Young-Jiles came to the home for a visit, Young-Jiles agreed to deduct $250 from Robinson's rent that month. Robinson stated that she paid Young-Jiles in cash.
{¶ 40} Robinson stated that Young-Jiles threatened to file an eviction in December 2018, but she never did. "She kept giving me notices." She stated that she got a notice in January 2019. According to Robinson, there were three-day notices and a ten-day notice, "followed up by like [a] type of paperwork. It was like a pamphlet." She stated that she was going to put money in escrow, because the electricity was "messed up" on the house, but Young-Jiles became upset with Robinson because Robinson did not let her into the house, so she (Young-Jiles) "just filed an eviction." Robinson stated that she "felt like [the notices] were fictitious." Robinson stated that she went to the clerk of court's office and, after speaking to someone there, she did not believe that she needed to take any action in relation to the notices.
{¶ 41} According to Robinson, on the morning of the eviction, she heard banging on her door and someone said, "Bailiff." She responded, "you are going to have to show me court documents or a badge or something to show me that you [are] a legitimate Bailiff." When asked why she responded this way, Robinson replied that it was because of "all these fictitious documents" she had gotten. Robinson wondered if Young-Jiles had had one of her friends come over and pose as a bailiff, because Young-Jiles did have friends who were "retired cops and stuff like that." Robinson felt that Young-Jiles "was just trying to force [her] out like that."
{¶ 42} Robinson stated that Miller wore a jacket that said "Bailiff" on the top front, and he "just kept pointing at * * * the letters on his jacket," but Robinson thought "that's not enough." She also testified that she asked Boyd to help her move because he had a "rent a truck business"; she planned to take her belongings to a storage unit on Waggoner Ford Road that cost $47 a month. Robinson stated that she had planned to leave some items that had belonged to her grandmother; other items that she was planning to take she had moved into the garage "to be able to throw them into the truck."
{¶ 43} Robinson recounted that she opened the front door to close the screen door while Miller was walking away from the house with his back to her. But Miller "turned around and * * * bum rushed the door. Robinson tried to put her foot and her body weight on the door, but it "wasn't enough." Robinson stated that Miller ran at her like "he was tackling somebody like football." She testified that Miller swung at her face with his right hand in a fist, and that she "ducked back * * * luckily"; she "swung back" and hit Miller because she felt she was being attacked. Robinson stated that Miller tackled her to the floor and she hit her head, then Miller got on her back and put his arm around her throat "trying to choke" her. Robinson stated that Miller "didn't get a full-on choke" because she bit him. She stated that she only bit him because he was choking her, and that after she bit him, Miller bit her right shoulder.
{¶ 44} Robinson testified that, in her opinion, if Miller had been "legitimate" bailiff, he would have shown her his badge and official court documents, "which he couldn't do." She stated that, before Miller entered the home, she tried to call law enforcement, but her phone was dead, and so she asked Boyd to call 911 on his phone. Regarding the photo of the eviction notice on a table under the knife in her home, Robinson acknowledged that she had "some paperwork like that," but said that, "[i]f it came from the courts," it would have been "in a tote with the rest of my mail" and out of sight. Robinson testified that when the uniformed officer entered her home, he put a Taser in her face, but she became compliant because she saw his badge.
{¶ 45} On cross-examination, Robinson stated that she had called Young-Jiles about the January notice, and Young-Jiles said Robinson was being evicted because she (Robinson) would not let Young-Jiles in the house. Robinson stated that she received "several" three-day notices between January and April, "one per month," but that she did not know the exact dates; there were also "ten day notices and court papers." When asked why she had not produced them, Robinson replied that her "belongings were thrown out on the street" and she had been incarcerated.
{¶ 46} Robinson testified that she was not served with a notice of the eviction hearing. When shown State's Exhibit 1, she stated, "I'm not one hundred percent sure that this is the document that I received." Robinson stated that she had not finished packing her belongings by June 11, 2019.
{¶ 47} At the conclusion of the evidence, defense counsel renewed Robinson's Crim.R. 29 motion for acquittal, arguing that self-defense was established beyond a reasonable doubt because Robinson had reasonable grounds to believe that a stranger was attempting to enter her house. The trial court again denied the motion.
{¶ 48} Robinson asserts two assignments of error which we will consider together:
APPELLANT'S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS A MATTER OF LAW.
APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 49} Robinson asserts that she was served with multiple eviction notices prior to the January 19, 2019 three-day notice, and Young-Jiles had failed to proceed with those evictions. She asserts that this circumstance, coupled with the fact that Miller did not show her his badge or the court paperwork, were the only reasons she "knowingly caused physical harm" to Miller "in an act of self-defense," and only after being struck by Miller. Robinson asserts that she was not at fault in creating the situation that gave rise to the altercation. According to Robinson, Miller used his shoulder, elbow, and hands to force the door open, and in using such force to enter the residence, Miller created the situation giving rise to the alleged assault. She asserts that she "had a bona fide belief that she was in imminent danger of great bodily harm" and that her only means of escape was through force. Robinson points out that Miller was "an imposing figure," and his stature alone could have given rise to her fear of great bodily harm," but this fear was amplified by his "running at her in her own doorway." Robinson argues that Miller did not need to use such measures to gain access to her residence.
{¶ 50} Robinson also argues that she was "of the understanding that they would be waiting for police to arrive" to sort out any confusion, and she attempted to secure the property while waiting for the police so that Miller "would [not] unlawfully gain access causing her bodily harm." She argues that she was not a threat to Miller, and that no facts suggest that he needed to use force to incapacitate her. Robinson asserts that she attempted to defend herself while she was being taken to the ground and then "in an attempt to prevent being choked." She argues that when Miller swiftly approached her and attempted to take her down, "she was in fear of great bodily harm," and she used reasonable force to thwart the attack, though unsuccessfully.
{¶ 51} Finally, Robinson asserts that she was still in possession of her residence at the time of the alleged assault, even though she was being evicted on that date. As such, Robinson contends that, under the Castle Doctrine, she was "presumed to be acting in self-defense" against "someone without the right to be there." Robinson acknowledges that Miller "had a lawful right to be there to perform the eviction, negating the presumption," but she asserts that she used non-deadly force to defend herself, and gthere is no duty to retreat when using non-deadly force in self-defense.
{¶ 52} The State responds that it presented sufficient and credible evidence that, by not vacating her residence pursuant to a Dayton Municipal Court eviction order, Robinson was at fault in creating the situation giving rise to the assault on Miller. The State argues it further presented sufficient and credible evidence that Robinson was not in imminent or immediate danger of harm. For these reasons, the Castle Doctrine defense found in R.C. 2901.05(B) was not legally available to Robinson. The State argues that Robinson's conviction should be affirmed because it proved that she was not acting in self-defense.
{¶ 53} The State also asserts that whether Miller complied with Robinson's demands to see his credentials had no bearing on her self-defense claim, because her .testimony that she would have let Miller into the house if he had shown "credentials" was contradicted by the fact that she had recently changed the locks to the house, and photos of the home showed "a cluttered house that in no way had been prepared for a move." According to the State, Robinson had no intention to leave the residence on the day of the eviction, so Miller had no other option than to forcefully eject Robinson from the premises.
{¶ 54} The State further asserts that Robinson "created the situation" by striking Miller in the face without provocation, and that Miller "simply stepping into the house" did not create a situation that justified Robinson's defending herself with force. The State notes that the writ of execution issued in the eviction case specifically ordered the bailiff to enter the house.
{¶ 55} Finally, the State argues that Robinson "did not have a reasonable, 'bona fide belief' that she was under immediate danger," because she knew to expect a bailiff at her door on June 11, and Miller did not threaten her with violence or use violence to retake the property.
{¶ 56} In reply, Robinson asserts that Miller's actions gave rise to the events of June 11, 2019. In response to the State's assertion that the altercation could have been avoided if Robinson had peacefully allowed Miller into the house, Robinson contends that the "same argument can be used against" Miller, who had a duty to peacefully perform his assigned tasks to the best of his abilities. "Escalating the situation [was] not in the best interest of peacefully completing an eviction." According to Robinson, Miller forcefully entering the residence prior to the arrival of police, leading to an altercation, and she "reasonably developed a bona fide belief of imminent bodily harm," in response to which she used non-deadly force. She argues that she was not required to retreat inside her residence.
{¶ 57} As this Court has previously noted:
An appellate court reviews a trial court's ruling on a motion under Crim.R. 29 by the same standard applicable to a claim based on the sufficiency of the evidence. State v. Scott, 2018-Ohio-198, 104 N.E.3d 143, ¶ 37 (2d Dist.), citing State v. Bailey, 2d Dist. Montgomery No. 27177,
2017-Ohio-2679, ¶ 17. Sufficiency of the evidence "is the legal standard applied to determine whether * * * the evidence [in a given case] is [adequate] as a matter of law to support the jury['s] verdict." State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a challenge to a conviction based upon the sufficiency of the evidence, the " 'relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
In a challenge based on the weight of the evidence, an appellate court must review the record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice warranting reversal and a new trial. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A trial court's "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.' " Hill, 2013-Ohio-717, ¶ 8, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
Because "a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency," a determination that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. (Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11; State v. Miller, 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, ¶ 48, citing McCrary, 2011-Ohio-3161, ¶ 11.State v. Mattox, 2018-Ohio-992, 108 N.E.3d 1139, ¶ 23-24 (2d Dist.).
{¶ 58} This Court has noted:
* * * " '[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.' " State v. Flores-Lopez, 2017-Ohio-690, 85 N.E.3d 534, ¶ 50 (2d Dist.), quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).State v. Sewell, 2018-Ohio-2027, 112 N.E.3d 1277, ¶ 51.
{¶ 59} R.C. 2903.13(A), which proscribes assault, states: "No person shall knowingly cause or attempt to cause physical harm to another * * *."
{¶ 60} With respect to self-defense, R.C. 2901.05 provides:
A person is allowed to act in self-defense, defense of another, or
defense of that person's residence. 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, defense of another, or defense of that person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person's residence, as the case may be.
{¶ 61} As this Court has previously noted:
[In Ohio,] self-defense involving the use of non-deadly force requires proof that: (1) the defendant was not at fault in creating the situation giving rise to the altercation; and (2) that the defendant had reasonable grounds to believe and an honest belief, even if mistaken, that the defendant was in imminent danger of bodily harm and (3) the only means of protecting himself or herself from that danger was by the use of force not likely to cause death or great bodily harm. State v. Coleman, 2d Dist. Montgomery No. 27666, 2018-Ohio-1951, ¶ 13, quoting State v. Pigg, 2d Dist. Montgomery No. 25549, 2013-Ohio-4722, ¶ 36.State v. Koch, 2d Dist. Montgomery No. 28041, 2019-Ohio-4182, ¶ 36.
{¶ 62} State's Exhibit 1, the eviction notice, a copy of which was observed in Robinson's home, stated:
The Court has granted Restitution of the above premises to the Owner.
The Owner now has a Court Order to remove you and all other persons, along with any personal property, from the premises.
YOU ARE HEREBY NOTIFIED TO VACATE THE PREMISES. REMOVE ALL PERSONAL PROPERTY BEFORE JUN[E] 10 2019 BY 11:59 P.M. THE BAILIFF WILL PROCEED BY COURT ORDER TO EJECT YOU FORCIBLY AND RESTORE THE PREMISES TO THE OWNER ON JUN[E] 10 2019 BY 11:59 P.M.
IF YOU HAVE QUESTIONS REGARDING THE EVICTION DATE, CONTACT THE DAYTON MUNICIPAL COURT BAILIFF'S OFFICE AT 937-333-4325.
ANY PERSONAL PROPERTY NOT REMOVED BY THE DATE OF EVICTION WILL BE CONSIDERED ABANDONED AND SUBJECT TO REMOVAL AND DISPOSAL BY THE OWNER OF THE PREMISES. YOU MAY NOT REMOVE YOUR PROPERTY ON THE DAY OF EVICTION OR AFTER EVICTION WITHOUT THE WRITTEN PERMISSION OF THE OWNER OR LANDLORD.
You should contact you attorney if you have any questions about your legal rights in this matter. The Dayton Bar Association can help you find an attorney in the event you do not have one. The Dayton Bar Association can be reached by calling 222-7902. If you are unable to hire an attorney, you may be able to get legal help from Legal Aid of Western Ohio by contacting them at 1-888-534-1432 or www.legalaidline.org.
Should you need emergency housing or financial or legal assistance, you may wish to contact one of the agencies listed on this back of this page.
{¶ 63} The notice stated that service of the notice was made by Bailiff Miller on June 4, 2019 by posting a copy in a conspicuous place on the premises and sending a copy by ordinary mail.
{¶ 64} The Writ of Restitution, State's Exhibit 2, provided:
TO THE BAILIFF OF THE DAYTON MUNICIPAL COURT - - GREETINGS Whereas, in a certain action for the forcible detention of the following described premises, * * * 145 Princeton Dr. * * * lately tried before the Dayton Municipal Court, where Doreen Young-Jiles was/were plaintiff(s) and Kimberly A[.] Robinson defendant(s), judgment was rendered on the 31st day of May, 2019, that the plaintiff(s) have/has restitution of said premises and also that he/she/they recover Court Costs in the sum of $220.00 dollars.
You are Therefore Hereby Commanded to cause the Defendant(s) to be forthwith removed from said premises, and the said plaintiff(s) to have restitution of same; also that you levy on the goods and chattels of said Defendant(s), and make the costs aforesaid, and all accruing costs. And of this Writ make legal service and due return.
{¶ 65} Having reviewed the entire record, we conclude that Robinson's assault conviction was supported by sufficient evidence and was not against the manifest weight of the evidence. The State established, beyond a reasonable doubt, that Robinson did not use force against Miller in self-defense. The evidence reasonably supported the conclusion that Robinson was at fault in creating the situation giving rise to the altercation between her and Miller. Young-Jiles testified that she initiated the eviction process due to Robinson's failure to pay rent, and a copy of Exhibit 1 was in Robinson's possession prior to the eviction. When Miller came to the residence, Robinson was no longer entitled to be present in Young-Jiles's home. Miller acted pursuant to a court order to restore the premises to Young-Jiles, and Robinson's permission to do so was not required. While Miller acknowledged that waiting for the police to arrive had been an option, in his considerable experience, Miller had never been assaulted in the course of an eviction. As such, he proceeded to enter the home after repeatedly identifying himself as a bailiff and displaying his patch. His manner of entering the house was consistent with about one-third of his eviction cases.
{¶ 66} The jury clearly did not credit Robinson's testimony that she had previously received multiple notices of eviction and reasonably believed that the instant eviction was "fictitious." The jury further also clearly disbelieved Robinson's testimony that Miller, in the absence of provocation, attempted to punch her, roughly tackled her, and subsequently choked her. Rather, the jury credited Miller's testimony that he identified himself repeatedly as a bailiff and advised Robinson that he was there for the eviction. The jury reasonably rejected Robinson's assertion that Miller's failure to specifically show his "credentials" or "court papers" justified her use of force against him. The jury also reasonably credited Miller's testimony that, as he entered the home, Robinson immediately punched him twice in the face, and he acted to defend himself, striking her back to "daze" her and gain control of the situation. We accord substantial deference to the jury's credibility assessments.
{¶ 67} Furthermore, the jury reasonably concluded beyond a reasonable doubt that Robinson did not have reasonable grounds to believe, and an honest belief, even if mistaken, that she was in imminent danger of bodily harm by Miller. Young-Jiles described Robinson "beating [Miller's] ass"; she sought help from her movers to intervene for his protection, and she called 911 on Miller's behalf. Miller, who had a distinguished career in law enforcement, testified that he was experienced in restraining combative persons, and that even after he placed Robinson on the floor to prevent further injury, she continued to struggle and "chomped" on his arm, leaving teeth marks, even after being told by Boyd that Miller was a bailiff. The jury concluded that Robinson was the primary aggressor in the altercation, that her use of force was not justified, and that her conduct constituted an assault on Miller. The photographs of Miller's injuries supported his version of events, and he required medical care at the hospital. Hale's testimony was consistent with Miller's that Robinson continued to struggle and that Miller did not act to harm her. He testified that Robinson did not become compliant until threatened with the use of a Taser. Finally, although Robinson testified that she was prepared to be evicted, the evidence at the house did not support this assertion; she remained in the home, there was a new lock on the door, and the home was cluttered with her belongings.
{¶ 68} Based upon the foregoing, Robinson's assigned errors lack merit, and they are overruled.
{¶ 69} The judgment of the municipal court is affirmed. FROELICH, J. and WELBAUM, J., concur. Copies sent to: Matthew Kortjohn
Frank Matthew Batz
Hon. Deirdre E. Logan