State v. Porter , 2021 Ohio 3232 ( 2021 )

[Cite as State v. Porter, 2021-Ohio-3232.]
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, 2021-Ohio-1485, 170 N.E.3d 557, ¶ 21 (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, 2021-Ohio-2044; City of Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128,
2021-Ohio-2685, ¶ 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, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 46 (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, 2021-Ohio-1485, 170 N.E.3d 557, at ¶ 32. 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, 2019-Ohio-3595, ¶ 12, quoting State
v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (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, 2018-Ohio-1701, 111 N.E.3d 708, ¶ 35 (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, 2015-Ohio-2997, ¶ 59, quoting
State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (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, 2020-Ohio-1230, ¶ 17, 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