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State v. Echevarria

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
NERY ECHEVARRIA DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-612167-A

          ATTORNEY FOR APPELLANT Ashley L. Jones The Law Office of Ashley L. Jones

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: James Rice Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, A.J., McCormack, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant Nery Echevarria appeals from her convictions for felonious assault. Echevarria contends that her convictions should be overturned because the trial court failed to give complete and accurate jury instructions on the issue of self-defense and because her convictions are against the manifest weight of the evidence. For the reasons that follow, we affirm.

         Factual and Procedural Background

         {¶2} Echevarria's convictions arose out of a December 2, 2016 altercation in which she stabbed a neighbor, Michael Butler. On December 12, 2016, a Cuyahoga County Grand Jury indicted Echevarria on one count of felonious assault in violation of R.C. 2903.11(A)(1) and one count of felonious assault in violation R.C. 2903.11(A)(2). Echevarria entered pleas of not guilty, and the case proceeded to a jury trial.

         {¶3} The state presented testimony from three witnesses - Butler, Cleveland Patrol Officer Jonathan Rodriguez and Cleveland Police Detective Tom Manson. Echevarria testified in her defense. A summary of the relevant testimony follows.

         {¶4} During the late afternoon of December 2, 2016, Echevarria and Butler were watching television and drinking beer at Butler's apartment. The two had known each other for approximately two years and, according to Butler, had been physically intimate in the past. After they spent some time at Butler's apartment, Echevarria invited Butler to her apartment to watch another television show. Butler drove Echevarria to her apartment on Broadview Road in Cleveland and then went out to buy more beer before joining Echevarria at her apartment.

         {¶5} Butler and Echevarria offered very different accounts as to what happened next. Butler testified that when he returned to Echevarria's apartment, he and Echevarria were in her living room socializing and drinking. He testified that Echevarria was intoxicated and that they started kissing each other. Echevarria suddenly "pulled away, " became "enraged" and started making nonsensical threats, including telling Butler she was "going to get [her] cousin on [him]." Butler testified that while he was trying to figure out what was going on, Echevarria ran into the kitchen and returned with a "big meat knife." Echevarria attacked him with the knife, stabbing him on the side of the head and "clipping" his ear. Butler testified that he "football tackled her real hard, " that they both "hit the floor" and that they "were in a scuffle, " rolling around on the floor. Butler testified that he hit Echevarria "about three times, " but she did not let go of the knife. He then got up and started kicking Echevarria, "stomping" on her head. As Butler kicked her, Echevarria cut his leg with the knife. When Echevarria began to get up, Butler turned around, grabbed his keys and coat and left the apartment. Butler testified that he drove back to his apartment a couple of blocks away, holding his hand to his head in an attempt to control the heavy bleeding. When he arrived home, approximately three or four minutes later, he knocked on a neighbor's door and asked him to call 911, then ran into the bathroom of his own apartment "to see what damage was done." Butler testified, "I had blood all over me and all over my clothes." Butler walked out of the bathroom, sat in a chair and "almost passed out" before EMS arrived a few minutes later. EMS transported him to MetroHealth Medical Center ("Metro"), where he received stitches for the injury to his head. Butler testified that his injuries consisted of a serious cut to his forehead, another cut to his forehead, a cut on his ear and a cut or bruise on his leg.

         {¶6} A toxicology screen conducted while Butler was at the hospital tested positive for cocaine and alcohol. Butler denied using crack cocaine on December 2, 2016, but acknowledged that it "could have been in my system" at the time of the altercation due to prior use.

         {¶7} Butler testified that he did not know what injuries Echevarria sustained in the altercation. He testified that Echevarria continued to hold and use the knife as they were scuffling and that he used the amount of force against her that he felt was necessary to defend himself and get out of harm's way.

         {¶8} Patrol Officer Jonathan Rodriguez with the Cleveland Police Department was one of the officers who responded to the 911 call made by Butler's neighbor. He testified that while he was en route to Butler's apartment, a male "flagged him down" and told the officer that his friend had been stabbed. The male led Officer Rodriguez to Echevarria's apartment while a second patrol unit proceeded to Butler's apartment. Officer Rodriguez testified that he saw blood all over the hallway leading to Echevarria's apartment. When he arrived at the apartment, Officer Rodriguez met Echevarria and asked her what had happened. He testified that Echevarria had a small cut on the left side of her cheek, a cut on her forehead and that her face and arms were covered in blood. He did not notice any other injuries.

         {¶9} Officer Rodriguez testified that Echevarria first told him that she was attacked by an unknown black male while she was opening the door to her apartment. She later told Officer Rodriguez that she was attacked by a "friend, " that she was attacked by a "short black male with a burnt face" and that she was attacked by the "gringos" across the hall. Officer Rodriguez looked around the apartment and noticed that furniture had been knocked over, that the apartment appeared to have been "ransacked" and that there was blood "all over." Officer Rodriguez testified that he found a knife with blood on it in the living room which he believed had been involved in the attack. Officer Rodriguez asked Echevarria from where the knife came. He stated that she told him she didn't know. However, when Officer Rodriguez entered Echevarria's kitchen, he saw an open drawer containing knives similar to the knife he had found in the living room. He testified that Echevarria was "highly intoxicated, " "disoriented" and "shocked" when he saw her but that she did not appear to be confused. After he spoke with Echevarria, she was transported by EMS to Metro for treatment of her injuries.

         {¶10} Officer Rodriguez also spoke with the officers from the patrol unit that responded to the original call at Butler's apartment, viewed Butler's apartment and spoke with Butler, whom he said matched the description of a "man with a burnt face." Officer Rodriguez testified that Butler told him he was sitting on a rocking chair in Echevarria's apartment when she came out of the kitchen with a knife, yelling and screaming "for no reason, " and attacked him. According to Officer Rodriguez, Butler told him that he fell back on the rocking chair, got up and was stabbed a couple of times. Butler told Officer Rodriguez that Echevarria was on top of him and that he pushed her away with sufficient force to get her off of him, grabbed his car keys and left the apartment. Officer Rodriguez testified that Butler had "red eyes" but did not otherwise appear to be intoxicated.

         {¶11} After interviewing Butler and Echevarria and viewing both apartments, Officer Rodriguez arrested Echevarria. He testified that he arrested Echevarria because she "kept switching her stories, " was "heavily intoxicated, " "wasn't making any sense, " had lied about the knife and because Butler suffered more injuries than she did.

         {¶12} Detective Tom Manson with the Cleveland Police Department was assigned to investigate the incident. After reviewing the police report, Detective Manson interviewed Butler at his home on December 3, 2016. Detective Manson testified that Butler told him he had been friends with Echevarria for two or three years and that while he and Echevarria were drinking beer and watching television at her apartment, she "got up for unknown reasons, " went to the kitchen and came running back towards Butler with a butcher knife, yelling at him. He testified that Butler told him that Echevarria struck him in the left side of the head three times with the knife and that the pair began struggling on the ground for the knife. Detective Manson testified that Butler told him that he struck Echevarria "out of defensive purposes" and that he pushed her to the ground when he tried to run for the door and Echevarria got up and tried to follow him.

         {¶13} Later that day, Detective Manson spoke with Echevarria about the incident. He testified that Echevarria told him she was at home drinking beer with Butler and asked him to leave because she had another friend coming over. According to Echevarria, Butler became "very upset" and the next thing she recalled was being on the floor with Butler punching and kicking her. Because Echevarria had not mentioned a knife in her description of the incident, Detective Manson stated that he asked her if she recalled a knife or had used a knife that evening. He testified that Echevarria indicated that she did not remember a knife "at all" and stated only that "anything she might have done was done in self-defense."

         {¶14} Detective Manson testified that Echevarria told him she did not contact the police regarding the incident and instead reached out to a friend. Detective Manson testified that Echevarria gave him contact information for the friend but the address Echevarria gave him was "not a good address" and when he went to the address he had been given and attempted to locate the friend, he could not find the friend or anyone who knew him.

         {¶15} He testified that Echevarria was "very bruised up" and had a laceration to the left side of her face that had been closed with stitches, small cuts to her forehead and bruising on her eyes, neck and upper chest. Detective Manson testified that if he had known the full extent of Echevarria's injuries before speaking with Butler, he would have questioned Butler "more extensive[ly]" regarding Echevarria's injuries.

         {¶16} Detective Manson testified that the Crime Scene Unit took photographs of the scene and recovered from Echevarria's apartment the knife used in the altercation. He testified that the Crime Scene Unit did not collect blood samples or swab for DNA because both Echevarria and Butler were bleeding.[1]

         {¶17} After the state rested, Echevarria moved for acquittal pursuant to Crim.R. 29 based on self-defense. The trial court denied the motion. Echevarria was the sole witness for the defense.

         {¶18} Echevarria testified that after Butler returned to her apartment with beer, they were having a "nice time, " drinking, "laughing, doing jokes" until around 9:30 or 10:00 p.m. when Echevarria told Butler it was time for him to leave. Echevarria testified that she told Butler she wanted him to leave because another friend, Jessie, was coming over and she did not want Jessie to see him there. According to Echevarria, Butler then started calling her offensive names and pushed her into a rocking chair. Echevarria testified that the chair broke and that she fell onto the floor where Butler began "slamming" her head on the ground, kicking her with his steel-toed work boots. Echevarria testified that she attempted to block the blows with her arms, causing severe bruising and permanently damaging her arm. She stated that as Butler was hitting and kicking her, she was screaming for help and reached for her cell phone. Echevarria testified that she could not see the numbers on the phone but was able to push a button to call Jessie, who lived four blocks away. She testified that she activated the speaker phone so Jessie could hear her screaming for help and Butler beating her. However, she did not ask Jessie to call the police.

         {¶19} Echevarria testified that while Butler was kicking and hitting her, she "must have been like blacked out." She testified that she struggled to find something with which to protect herself and, with blood on her hands and her "eyes * * * full of blood, " made her way into the kitchen. Butler did not follow her inside the kitchen. Echevarria testified that she grabbed the first thing she found, a knife. The knife was clean and in a kitchen drawer. Echevarria testified that as she grabbed the knife, she saw a "shadow" coming towards her. She exited the kitchen and when she reached the living room, she began swinging the knife, cutting Butler. Echevarria stated that she "didn't want to stab him or nothing, " she just wanted him to leave. She testified that she screamed, "Get out my house, get out my house, " and stated that "[i]f he sees me with a knife, he should have ran." She testified that she got the knife because she thought Butler was going to kill her. Echevarria maintained control of the knife throughout the altercation and did not put the knife down until Butler left.

         {¶20} Echeverria testified that after she cut Butler with the knife, he "must have started going crazy." Butler ran out of her apartment into the hallway. Echevarria threw the knife somewhere in the living room and did not know where it landed. She testified that she was "too scared" to go out into the hallway and did not leave her apartment until Jessie arrived and she opened the door for him. She testified that neither she nor Jessie called 911 but that Jessie waved down a police officer to assist her. Echeverria testified that, as a result of the altercation, she suffered a fractured nose, injured her arm, had several facial cuts and bruises, had bruising on her arms, chest and neck, received stitches for a facial cut and had a loose tooth.

         {¶21} Echeverria testified that when she spoke with police shortly after the altercation, her ears were ringing, she didn't know if she was "coming or going, " she was confused and scared and her "mind wasn't right." She initially testified that she did not remember if she told the police different stories about what had happened that evening but later acknowledged telling the police officer that it was "these white people that be hanging out in the parking lot in the back" who attacked her. Echevarria also offered conflicting testimony about her drinking. Echevarria originally testified that she started drinking at 3 p.m. on December 2, 2016 and that she had a couple of beers before going over to Butler's apartment. She later testified that she began drinking at 9 a.m., had a couple of beers with an eastside friend at breakfast, and then split a 12-pack and had a few tall beers with Jessie in the afternoon before heading over to Butler's apartment.

         {¶22} Echevarria testified that she had been in treatment for mental health issues, including depression and a bipolar disorder, since 2010. She testified that at the time of the altercation, she had been regularly taking various prescription medications for her mental health issues, but that she did not take her medications that day. She claimed that her psychiatrist told her she could drink alcohol with her medications but that she did not take her medications on days she knew she would be drinking alcohol due to fear of side effects, getting sick or overdosing. Echevarria testified that although she had been drinking alcohol on the day of the altercation, she told the medical staff at Metro that she was currently in a treatment program for alcohol dependence and had been "[s]ober for a month-and-a-half" Although her medical records indicated that Echevarria had exhibited "combative and agitative behavior" while at the hospital and that "[p]atient requires frequent redirection by law enforcement for aggressive behavior towards [medical] staff, " Echevarria did not recall this and stated only that she was "very angry" about what had happened and "[m]aybe I was just taking it out on them."

         {¶23} After Echevarria testified, [2] the defense rested and Echevarria renewed her Crim.R. 29 motion. Once again, the trial court denied the motion.

         {¶24} The jury returned guilty verdicts against Echevarria on both counts of felonious assault. The parties stipulated that the two felonious assault counts were allied offenses, and the state elected to sentence Echevarria on Count One, felonious assault in violation of R.C. 2903.11(A)(1). On April 24, 2017, the trial court sentenced Echevarria to two years of community control and ordered her to pay $100 in restitution and costs.

         {¶25} Echevarria appealed her convictions, raising the following two ...


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