State v. Gibson , 2015 Ohio 3616 ( 2015 )

[Cite as State v. Gibson, 2015-Ohio-3616.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1063
Appellee Trial Court No. CR0201303230
v.
Meika Gibson DECISION AND JUDGMENT
Appellant Decided: September 4, 2015
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Michael J. Loisel, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal brought by appellant, Meika Gibson, from the judgment of
the Lucas County Court of Common Pleas which found her guilty of a violation of R.C.
2903.11(A), felonious assault, a felony of the second degree. Appellant was then
sentenced to serve a sentence of three years in prison with a mandatory three years of
postrelease control.
{¶ 2} Appointed counsel has filed a brief and requested leave to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). Under Anders, if, after a conscientious examination of the case, counsel
concludes the appeal to be wholly frivolous, she should so advise the court and request
permission to withdraw. Id. at 744. This request must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. In addition,
counsel must provide appellant with a copy of the brief and request to withdraw, and
allow appellant sufficient time to raise any additional matters. Id. Once these
requirements are satisfied, the appellate court is required to conduct an independent
examination of the proceedings below to determine if the appeal is indeed frivolous. Id.If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the
appeal without violating any constitutional requirements. Id.{¶ 3} Appellee, state of Ohio, did file a responsive brief in which it agreed that
there are no meritorious arguments that would support this appeal and did not object to
counsel’s motion to withdraw.
{¶ 4} In this case, appellant’s appointed counsel has satisfied the requirements set
forth in Anders, supra. This court further notes that appellant did not file a pro se brief in
this matter.
2.
{¶ 5} Accordingly, this court shall proceed with an examination of the potential
assignments of error set forth by counsel. We have reviewed the entire record from
below to determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 6} Counsel refers to two possible, but ultimately untenable, issues: (1) the
appellant’s conviction fell against the sufficiency and/or manifest weight of the evidence
concerning the affirmative defense under R.C. 2901.05, and (2) the trial court abused its
discretion in refusing to instruct the jury concerning the lack of duty to retreat in one’s
own residence under R.C. 2901.09
{¶ 7} Under Ohio law, self-defense is an affirmative defense which a defendant
must establish by a preponderance of the evidence. R.C. 2901.05(A); State v. Martin, 21
Ohio St.3d 91, 94, 488 N.E.2d 166 (1986). To prove self-defense, a defendant must
prove (1) that she was not at fault in creating the situation giving rise to the use of deadly
force, (2) that she had reasonable grounds to believe and an honest belief that she was in
immediate danger of death or great bodily harm and that her only means of escape from
such danger was by the use of deadly force, and (3) that she did not violate any duty to
escape to avoid the danger. State v. Cooper, 170 Ohio App.3d 418, 426, 2007-Ohio-
1186, 867 N.E.2d 493, ¶ 18 (4th Dist.), citing State v. Williford, 49 Ohio St.3d 247, 249,
551 N.E.2d 1279 (1990).
{¶ 8} In the case before the court, the prosecution presented the testimony of the
police officers who responded to a 911 call made by first medical responders. Appellant
admitted to one of the officers that she had stabbed the victim and told him where the
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knife was located. Appellant further told one of the officers that she had felt threatened
by the victim and then stabbed him. The officer observed the victim while he was being
treated by emergency personnel but was unable to communicate with him due to his
intoxicated condition and the fact that he was suffering from a stab wound at the time.
Appellant also said she had been punched by the victim.
{¶ 9} The victim was unable to be located and provided no information and did
not appear at trial. Nevertheless, appellant did admit to stabbing the victim with a knife.
To establish a defense of self-defense the burden is on the appellant to prove: (1) no fault
in creating the situation; (2) that she had reasonable grounds to believe and an honest
belief that she was in immediate danger of death or great bodily harm; (3) that her only
means of escape from such danger was by the use of deadly force; and (4) that she did not
violate any duty to escape to avoid the danger. Ultimately, this is a credibility question
that must be determined by the jury.
{¶ 10} “Sufficiency of the evidence” is a legal standard which is applied to
determine whether the evidence is legally sufficient to support a jury verdict as a matter
of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684
N.E.2d 668 (1997). It requires the court to determine whether the state has presented
enough evidence on each element of the crime to allow the case to go to the jury. Id.There was clearly sufficient evidence presented for the jury to make a determination,
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based upon a credibility assessment, as to whether appellant had established a self-
defense under R.C. 2901.05(A).
{¶ 11} A manifest weight challenge questions whether the state has met its burden
of persuasion. State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-Ohio-1394, citing
Thompkins at 387. In making this determination, the court of appeals sits as a “thirteenth
juror” and, after “reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether, in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins, supra, at 386.
{¶ 12} This court has reviewed the applicable law as well as the trial court’s
record, including the oral testimony of the trial. Upon due consideration, we find that the
record contains sufficient evidence to support appellant’s conviction for a violation of
R.C. 2903.11(A), felonious assault. In addition, we find, after reviewing the entire record
and weighing the evidence and all reasonable inferences, that the trier of fact did not lose
its way in reaching its verdict.
{¶ 13} Therefore, this potential assignment of error is without merit.
{¶ 14} The second potential assignment of error involves a consideration of the
“Castle Doctrine” as set forth in R.C. 2901.09. That section states in pertinent part:
(B) For purposes of any section of the Revised Code that sets forth a
criminal offense, a person who lawfully is in that person’s residence has no
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duty to retreat before using force in self-defense, defense of another, or
defense of that person’s residence, and a person who lawfully is an
occupant of that person’s vehicle or who lawfully is an occupant in a
vehicle owned by an immediate family member of the person has no duty
to retreat before using force in self-defense or defense of another.
{¶ 15} However, it is undisputed that both appellant and the victim were residents
of the dwelling where the stabbing took place.
{¶ 16} Counsel aptly points out that the Castle Doctrine as set out in the Ohio
Revised Code has a specific exemption set forth in R.C. 2901.05(B)(2)(a) which states:
(2)(a) The presumption set forth in division (B)(1) of this section
does not apply if the person against whom the defensive force is used has a
right to be in, or is a lawful resident of, the residence or vehicle.
{¶ 17} Therefore, we cannot find that the trial court abused its discretion in
denying appellant’s requested jury instruction to apply the Castle Doctrine.
Conclusion
{¶ 18} We have accordingly conducted an independent examination of the record
pursuant to Anders v. California. We have examined the various filings and the written
transcript of the trial and have found no error prejudicial to appellant’s rights in the
proceedings in the trial court and have further found no non-frivolous issues for review.
The motion of counsel for appellant requesting to withdraw as counsel is granted, and
this appeal is deemed wholly frivolous.
6.
{¶ 19} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. The clerk is
ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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