[Cite as State v. Smith, 2014-Ohio-828.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99978
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENETRIS SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-564826
BEFORE: E.T. Gallagher, J., Jones, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: March 6, 2014
ATTORNEY FOR APPELLANT
Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, Ohio 44136
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jennifer O’Malley
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Denetris Smith (“Denetris”),1 appeals her misdemeanor
assault and felonious assault convictions. We find no merit to the appeal and affirm.
{¶2} Denetris was charged with one count of felonious assault in violation of R.C.
2903.11(A)(1) and one count of felonious assault in violation of R.C. 2903.11(A)(2).
The victim, Leah Simmons Motley (“Leah”), testified at a bench trial that the assault
occurred at her mother-in-law’s house during a family party. Leah accused Denetris of
telling lies about her, and Denetris denied the accusations. During the argument,
Denetris jabbed her finger between Leah’s eyes, which provoked Leah to engage Denetris
in a fist fight outside. Family members prevented her from following Denetris out the
front door so Leah exited the house from the side door, came around to the front yard, and
called Denetris to fight her. According to Leah, Denetris accepted the invitation to fight
and stabbed her with a grilling fork. Leah did not see the grill fork until Denetris was
one foot away from her.
{¶3} Denetris, who testified in her own defense, offered a different story. She
agreed that she and Leah had a brief argument in the living room of the house but did not
want to fight in the presence of her grandchildren who were at the party. According to
Denetris, she was playing with her grandchildren in front of the house when she was
suddenly “smacked with a piece of brick” on the right side of her face. Denetris’s vision
1 Denetris was originally indicted as Denetreous. However, on the state’s
motion on the record in open court, the court amended the indictment to reflect the
correct spelling of Denetris’s first name as Denetris.
became blurry, and her two grandchildren, who were standing next to her, screamed and
tried to grab her. A family member took the children onto the porch away from the
fighting. According to Denetris, Leah approached her again as she was trying to escape
and struck Denetris in the forehead with the brick. Denetris grabbed Leah, and they fell
to the ground where the scuffle continued. Denetris testified that she picked up the grill
fork in self defense because Leah was reaching for it screaming, “Bitch, I’m going to kill
you.” With the fork in hand, Denetris warned Leah to “get back.” According to
Denetris, Leah refused to back off, ran toward Denetris, and was stabbed by the fork.
{¶4} Denetris’s fiancé Derrick Motley, a.k.a. “Big Derrick,”2 was the only other
witness at trial who was present at the scene of the fight. He testified that as soon as he
and Denetris arrived at his mother’s house, Leah was angry and spoke profanity to
Denetris. Big Derrick and Denetris exchanged a few words with Leah before walking
out the front door of the house. While Big Derrick was socializing, he heard somebody
say, “You hit me,” and observed Denetris holding her face and Leah standing nearby.
According to Big Derrick, Leah tried to hit Denetris again, and Denetris hit her back. He
observed Leah reaching for the grilling fork during the scuffle but Denetris managed to
pick it up first. Although Big Derrick heard Denetris instruct Leah to “get back,” he
admitted he did not actually see Denetris stab Leah.
Big Derrick has a little brother who is also named Derrick and goes by the
2
nickname “Little Derrick.”
{¶5} After the fight, EMS transported Leah to Huron Hospital where she was
treated for a stab wound. Officer Daniel Lombardo (“Lombardo”), who interviewed
Leah at the hospital shortly after the incident, testified that he observed “two little
puncture wounds” on Leah’s chest. There was no bleeding, and the wounds were not
bandaged. Lombardo also testified that Leah did not appear to be in extreme pain,
despite her testimony that she rated her pain a ten on a scale of one to ten.
{¶6} Based on this evidence, the trial court returned a not guilty verdict on Count
1, felonious assault in violation of R.C. 2903.11(A)(1), which requires proof of serious
physical harm. Instead, the court modified Count 1 and found Denetris guilty of the
lesser offense of assault. The court found Denetris guilty of felonious assault in
violation of R.C. 2903.11(A)(2) in Count 2, which requires proof that she “[c]ause[d] or
attempt[ed] to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance.” The court sentenced Denetris to one year of community control
sanctions. Denetris now appeals and raises two assignments of error.
Sufficiency of the Evidence
{¶7} In the first assignment of error, Denetris argues the evidence adduced at trial
is insufficient to sustain her felonious assault conviction. She contends the state failed to
prove that the grilling fork was a “deadly weapon” or “dangerous ordnance.”
{¶8} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is
insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency
requires a determination of whether the prosecution met its burden of production at trial.
State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 942 (1991),
paragraph two of the syllabus.
{¶9} Denetris was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which states: “No person shall knowingly * * * cause or attempt to cause
physical harm to another * * * by means of deadly weapon or dangerous ordnance.”
R.C. 2923.11(A) defines “deadly weapon” as “any instrument, device or thing that is
capable of inflicting death.” This court has held that the fact that a knife is capable of
inflicting death does not necessarily mean it is a deadly weapon. State v. Jordan, 8th
Dist. Cuyahoga Nos. 79469 and 79470, 2002 Ohio App. LEXIS 569 (Feb. 14, 2002) *11,
citing State v. Cathel, 127 Ohio App.3d 408, 411, 713 N.E.2d 52 (9th Dist.1998); see
also State v. Brown, 8th Dist. Cuyahoga No. 78515, 2001 Ohio App. LEXIS 2890 (June
28, 2001). To constitute a “deadly weapon,” the prosecution must show that either (1)
the knife was designed or specially adapted for use as a weapon, or (2) it was possessed,
carried or used as a weapon. Id. See also Columbus v. Dawson, 28 Ohio App.3d 45, 46,
501 N.E.2d 677 (10th Dist.1986).
{¶10} Denetris asserts that like a knife, the fork was adapted for use as a grilling
utensil rather than a weapon and that she did not use or carry it as a weapon. She further
argues that she picked up the grilling fork to keep it away from Leah, who would not stop
trying to attack her, and that she did not intend to use the fork as a weapon.
{¶11} However, Leah testified that she first saw the fork in Denetris’s hands and
that Denetris was using it as a deadly weapon. Even Denetris’s testimony that she used
the fork to keep Leah away from her is evidence of an intent to use the fork as a weapon,
i.e., to protect herself. She was not merely removing the fork from the scene.
Therefore, there was sufficient evidence to sustain Denetris’s felonious assault
conviction.
Self-Defense & Manifest Weight of the Evidence
{¶12} In the second assignment of error, Denetris argues both her misdemeanor
assault and felonious assault convictions are against the manifest weight of the evidence.
She contends the weight of the evidence proves she was acting in self defense.
{¶13} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541
(1997). When reviewing a claim that the judgment was against the manifest weight of
the evidence, we review the entire record, weigh both the evidence and all the reasonable
inferences, consider the credibility of witnesses and determine whether, in resolving
conflicts in the evidence, the factfinder clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at
387. Therefore, an appellate court will reverse a conviction due to the manifest weight
of the evidence only in extraordinary circumstances to correct a manifest miscarriage of
justice, and only when the evidence presented at trial weighs heavily in favor of acquittal.
Id.
{¶14} As previously stated, to establish felonious assault in violation of R.C.
2903.11(A)(2), the state had to prove that Denetris “[c]ause[d] or attempt[ed] to cause
physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”
To prove assault in violation of R.C. 2903.13(A), the state had to prove that Denetris
“knowingly cause[d] or attempt[ed] to cause physical harm to another.”
{¶15} To establish self-defense, the defendant must demonstrate, by a
preponderance of the evidence, that (1) she was not at fault in creating the situation
giving rise to the affray; (2) she had a bona fide belief that she was in imminent danger of
great bodily harm and that her only means of escape from such danger was in the use of
such force; and (3) she must not have violated any duty to retreat or avoid danger. State
v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990); see also State v. Robbins,
58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus. The elements
of self defense are cumulative and ‘“[i]f the defendant fails to prove any one of these
elements by a preponderance of the evidence, [s]he has failed to demonstrate that [s]he
acted in self-defense.”’ (Emphasis deleted.) Williford, quoting State v. Jackson, 22 Ohio
St.3d 281, 284, 490 N.E.2d 893 (1986).
{¶16} Although Denetris testified that Leah attacked her with a brick and that she
used the fork to defend herself, the court found Leah’s testimony more credible.
According to Leah, Denetris entered the fight with the fork in hand. Leah testified she
did not see the fork until Denetris was one foot away from her because Denetris was
hiding the fork behind her long skirt as she approached Leah. Leah further testified that
as soon as she was stabbed, family members intervened to break up the fight.
{¶17} Denetris portrayed herself as the victim of a brutal attack with a brick.
However, Denetris never reported the attack to the police, did not seek medical attention,
and failed to offer any photographs of the alleged injuries to her head. During the
investigation, Denetris gave police inconsistent reports of the events. She first told
detectives that Leah fell on the fork during the fight and that she stabbed herself. She
later changed her story and told detectives that she grabbed the fork and stabbed Leah
because Leah was about to punch her. Moreover, Denetris testified that Leah ran up to
her to attack her even though she was holding the fork and warning Leah to “get back.”
According to Denetris, Leah ran into the fork.
{¶18} Denetris also testified that no one intervened to stop the fight even though
Leah struck her twice in the head with a brick. However, Big Derrick corroborated
Leah’s testimony that people intervened to break up the fight as soon as she was stabbed.
If the family would break up a fight when a person is stabbed, it is logical to conclude
they would do the same if someone had been struck twice in the head with a brick.
{¶19} Based on the evidence presented at trial, it is reasonable that the court found
Leah’s testimony more credible. Leah’s testimony establishes that Denetris violated a
duty to avoid the fight and was equally responsible for “creating the situation giving rise
to the affray.” Williford, 49 Ohio St.3d at 249, 551 N.E.2d 1279. We therefore cannot
say that this is an exceptional case in which the evidence weighs heavily against
conviction.
{¶20} Accordingly, the second assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the common
pleas court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR