Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Trial Court Case No.
STEPHANIE L. COOK, Atty. Reg. No. 0067101, City of Dayton
Prosecutor's Office, 335 W. Third Street, Attorney for
S. GARRETT, Atty. Reg. No. 0055565, Attorney for
1} Defendant-appellant, Christianity I. Bennett,
appeals from her conviction for one count of assault, a
first-degree misdemeanor in violation of R.C. 2903.13(A).
Bennett argues that the conviction should be vacated because
the conduct for which she was found guilty was a permissible
exercise of her right to self-defense; because she was
incapable of knowingly causing harm to another person;
because the trial court erred by considering hearsay evidence
in support of its verdict, and by overruling her motion for
acquittal; because she was denied her right to a trial by
jury as a result of her defense counsel's failure to
render effective assistance; and because the verdict was not
supported by the evidence, or was entered contrary to the
manifest weight of the evidence. Additionally, Bennett argues
that the trial court abused its discretion by sentencing her
to a term of 180 days in jail, the maximum term for a
2} We find that Bennett did not raise the issue of
self-defense before the trial court; that the court did not
rely on hearsay evidence; that the court received a
sufficient quantity of credible evidence to support its
verdict; and that Bennett has not substantiated her defense
counsel's alleged ineffectiveness by citation to the
record. As well, we find that Bennett's sentence was not
an abuse of the trial court's discretion, despite the
harshness of the requirement that Bennett actually be
confined in jail for 60 days of her sentence. The trial
court's judgment of conviction is affirmed.
Facts and Procedural History
3} An ambulance transported Bennett to Miami Valley
Hospital for emergency care on the night of August 3, 2017,
after she was apparently struck by a motor vehicle while
walking along the sidewalk in her neighborhood in Huber
Heights. Transcript of Proceedings 16:3-16:19 and
88:22-89:19, Jan. 22, 2018. En route, medical technicians
placed a cervical collar around Bennett's neck and
initiated intravenous therapy. Id. at 27:19-28:6.
4} Bennett was admitted to Miami Valley
Hospital's emergency and trauma center at approximately
10:30 p.m., where Mary Stephens, a registered nurse, affixed
a heart monitor to her chest and began assessing her
condition. Id. at 14:17-15:8, 16:3-16:19 and
27:25-28:13; Appellant's Brief 5; Appellee's Brief 2.
The assessment included a series of questions that Bennett
answered coherently, and Stephens observed no external
injuries, though she noted that Bennett "was covered in
dirt and mulch." See Transcript of Proceedings
17:10-21:5. In response to one of Stephens's questions,
Bennett said that she had been consuming alcohol that
evening, which Stephens thought to be the explanation for
Bennett's "bloodshot" eyes. Id. at
24:13-25:23. Stephens later described Bennett's behavior
during the intake process as "mildly cooperative."
Id. at 21:2-21:5.
5} Once Stephens completed this initial assessment,
a physician examined Bennett, following which Bennett was
taken to the hospital's radiology section for a series of
computer assisted tomography scans. Id. at
25:9-26:14. After the scans were completed, Bennett was
brought back to her room in the emergency and trauma center,
at which time Stephens noted that Bennett's cervical
collar, heart monitor and intravenous line were still in
place. Id. at 28:19-28:25. Stephens then left the
room to check on other patients while she waited for the
radiology section's report on Bennett's condition.
Id. at 29:1-29:9.
6} Upon returning to the room, Stephens encountered
Bennett trying to leave her bed, having removed the cervical
collar, heart monitor and intravenous line. Id. at
29:10-14. Stephens cautioned Bennett that she thereby risked
injuring herself, but Bennett became "very insistent
that she was able to leave and that she should be able to
make that decision." Id. at 30:5-30:9 and
31:15-31:22. According to Stephens, however, the
hospital's policy was to allow the decision to be made
only by Bennett's attending physician, who preferred to
wait for the radiology report. Id. at 32:1-33:14. To
prevent Bennett from further interfering with the medical
devices attached to her, the attending physician directed
Stephens to use "soft restraints," which Stephens
described as cushioned or padded straps that are cinched
around a patient's wrists. See id. at
33:15-35:6. Stephens applied the soft restraints without
resistance from Bennett. Id. at 35:10-36:1.
7} Once Stephens left the room, Bennett extricated
herself from the soft restraints and removed her cervical
collar and heart monitor. Id. at 36:16-36:25.
Stephens notified Bennett's attending physician, who
apparently instructed Stephens to use locked, nylon
restraints to immobilize Bennett's wrists and
ankles. Id. at 37:1-37:22. Pursuant to
the hospital's policy on the use of locked restraints,
Officer Josh Wendling of the campus police department
reported to Bennett's room to assist Stephens, along with
several other nurses. Id. at 38:9-39:3. Bennett
resisted, but Stephens, the other nurses and Officer Wendling
were able to secure the restraints. Id. at
8} Eventually, Bennett began to struggle against the
restraint on her right wrist with such force that Stephens
worried she would dislocate her wrist or otherwise injure
herself, so Stephens asked Officer Wendling to help
reposition the restraint. Id. at 40:21-41:10. To
that end, Stephens took hold of Bennett's right arm while
Officer Wendling unlocked the restraint, at which point
Bennett began pinching "the * * * fat [on the back] of
[Stephens's] hands," and when Officer Wendling had
nearly finished repositioning the restraint, Bennett
"sat up and bit [the upper part of Stephens's] right
* * * arm." Id. at 41:24-43:4 and 44:10-44:23.
Stephens asked Bennett to stop, but because Bennett refused,
Officer Wendling physically intervened. See id. at
45:10-45:21. Photographs of Stephens's arm taken within
15 minutes of the incident show that the bite did not break
her skin, though "a bruise remain[ed] * * * for several
days." Id. at 45:24-48:1 and Exs. 1-2.
9} Afterward, Stephens covered Bennett's mouth
with "a spit mask so that she could not attempt to
injure anyone else," and a physician ordered that she be
sedated. Id. at 48:2-48:9. Several hours later,
Bennett was deemed fit to be discharged, and she was
transported from Miami Valley Hospital to the Montgomery
County Jail. See id. at 48:10-49:17.
10} Bennett was charged with one count of assault
under R.C. 2903.13(A), a first-degree misdemeanor. The case
was tried to the bench on January 22, 2018, and the judge
found Bennett guilty as charged. At Bennett's sentencing
hearing on February 27, 2018, the judge sentenced Bennett to
serve a term of 180 days in jail, with 120 days suspended;
ordered that she would thereafter be subject to a period of
intense, supervised probation with drug and alcohol
counseling; and forbade her from returning to Miami Valley
Hospital "unless she [were to be] taken there by
ambulance." Id. at 107:3-107:8. The judge
stayed the sentence pending Bennett's appeal, and Bennett
timely filed a notice of appeal to this court on March 12,
11} For her first assignment of error, Bennett
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
IMPLICITLY FOUND THAT DEFENDANT HAD NO RIGHT TO REFUSE
MEDICAL TREATMENT AND TO DEFEND HERSELF AGAINST THE UNLAWFUL
DETENTION, RESTRAINT, ASSAULT AND BATTERY COMMITTED BY THE
MIAMI VALLEY HOSPITAL STAFF WHO REFUSED TO LET HER LEAVE
AGAINST MEDICAL ADVICE.
12} Bennett argues, in other words, that the trial
court erred by finding her guilty of assault because she
"had a right to defend herself" against the
"forcibl[e] administ[ration] [of] medical
treatment" to which she did not consent. Appellant's
Brief 15. Thus, Bennett equates her conviction to a finding
that Miami Valley Hospital "had a lawful right to
restrain [her]" against her will. Id.
13} R.C. 2903.13(A) prohibits any "person
[from] knowingly caus[ing] or attempt[ing] to cause physical
harm to another or to another's unborn." In relevant
part, R.C. 2901.22(B) establishes that a "person acts
knowingly, * * *, when the person is aware that the
person's conduct will probably cause a certain result or
will probably be of a certain nature." The intended
purpose of the person's conduct is irrelevant.
14} In Bennett's view, because the
"hospital had absolutely no right * * * to restrain
[her] against her will," she had the "right to
defend herself against such unlawful force."
Appellant's Brief 15. Self-defense "is an
affirmative defense" for which the "burden of going
forward with the evidence, and the burden of proof, * * *, is
upon the accused." R.C. 2901.05(A); see also, e.g.,
State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d
1279 (1990). A "real or perceived threat of death or
great bodily harm is required * * * for [a person's] use
of deadly force to be justified as self-defense," but
"when faced with less than impending death or great
physical harm," a person "may use such force as the
circumstances require [to defend] against such danger as [the
person] has good reason to apprehend." City of Akron
v. Dokes, 31 Ohio App.3d 24, 25, 507 N.E.2d 1158 (9th
Dist.1986); see also State v. Fagan, 2d Dist. Clark
No. 08-CA-52, 2009-Ohio-3760, ¶ 19, citing
Dokes at syllabus. To justify the use of less than
deadly force in self-defense, a defendant must prove, by the
preponderance of the evidence, that: (1) she" 'was
not at fault in creating the situation which gave
rise'" to the event in which the purportedly
defensive use of non-deadly force occurred; and (2) she had
an honest, reasonable belief that she" 'was in
imminent danger of bodily harm'" and that her"
'only means to protect [her]self from such danger was * *
* the use of force not likely to cause death or great bodily
harm.' " State v. Allison, 2d Dist.
Montgomery No. 26885, 2016- Ohio-5262, ¶ 19, quoting
State v. Malott, 2d Dist. Montgomery No. 25420,
2015-Ohio-2968, ¶ 14; State v. Fritz, 163 Ohio
App.3d 276, 2005-Ohio-4736, 837 N.E.2d 823, ¶ 20 (2d
Dist.); Ohio Jury Instructions, CR Section 421.21
(Rev. Aug. 16, 2016). The defendant "must prove all [of]
these elements to establish self-defense." (Citation
omitted.) State v. Saturday, 12th Dist. Butler No.
CA2018-06-122, 2019-Ohio-193, ¶ 12.
15} At trial, Bennett neither claimed that she had
acted in self-defense, nor attempted to prove as much, and
she consequently waived the defense because she bore the
burden of persuasion. See, e.g., State v. Ireland,
155 Ohio St.3d 287, 2018-Ohio-4494, 121 N.E.3d 285, ¶
36; State v. Montgomery, 2015-Ohio-4652, 48 N.E.3d
1042, ¶ 13 (12th Dist.). The record did include
evidence, in the form of Stephens's testimony, that
Bennett expressed a desire to be discharged from Miami Valley
Hospital at some point after her admission, but she made no
attempt to incorporate that evidence into a defense
predicated on her right to use less than deadly force in
self-defense. We cannot tax the trial court with error for
failing to consider an affirmative defense that Bennett never
16} During closing statements, however,
Bennett's counsel remarked that Bennett "had a right
to resist" because Stephens, Officer Wendling and other
Miami Valley Hospital personnel had restrained her
"against her wishes." Transcript of Proceedings
96:13-96:18. Assuming strictly for sake of analysis that this
lone, oblique reference sufficed to raise the issue of
self-defense, we find that Bennett could not have met her
burden of proof in light of her own testimony. Bennett
testified that she "blacked out" when she was
struck by a motor vehicle and remembered nothing of being
transported to Miami Valley Hospital. Transcript of
Proceedings 88:25-89:24. Of the events thereafter, Bennett
testified as follows on direct examination:
COUNSEL: Do you know what hospital you were at?
COUNSEL: Do you know when you were at the hospital?
BENNETT: No, I don't know an exact time. No.
COUNSEL: Do you remember anything after the medics attended
BENNETT: The only thing I remember is the neck brace.
COUNSEL: * * * Describe to the judge the neck brace and what
it made you feel like.
BENNETT: Well, I came to, and I felt a neck brace on my neck.
COUNSEL: * * * Where were you?
BENNETT: I was in a room with the lights out.
COUNSEL: Was this a hospital room?
BENNETT: It looked to be like it was a hospital room.
COUNSEL: Was there anybody else around you?
BENNETT: Not that I remember.
COUNSEL: And what, if anything, did you do with the neck
BENNETT: It was uncomfortable, and I started trying to remove
COUNSEL: And after you tried to remove it, what's the
next thing ...