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State v. Bennett

Court of Appeals of Ohio, Second District, Montgomery

July 26, 2019

STATE OF OHIO Plaintiff-Appellee

          Criminal Appeal from Municipal Court Trial Court Case No. 17-CRB-5073

          STEPHANIE L. COOK, Atty. Reg. No. 0067101, City of Dayton Prosecutor's Office, 335 W. Third Street, Attorney for Plaintiff-Appellee

          DAWN S. GARRETT, Atty. Reg. No. 0055565, Attorney for Defendant-Appellant


          TUCKER, J.

         {¶ 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 first-degree misdemeanor.

         {¶ 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.

         I. 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.[1] 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.[2] 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 39:4-40:8.

         {¶ 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, 2018.

         II. Analysis

         {¶ 11} For her first assignment of error, Bennett contends that:


         {¶ 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. Id.

         {¶ 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.' "[3] 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 raised.

         {¶ 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 to you?
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 brace?
BENNETT: It was uncomfortable, and I started trying to remove it.
** *
COUNSEL: And after you tried to remove it, what's the next thing ...

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