[T]he state proved beyond a reasonable doubt that Ms. Himes created the situation giving rise to the altercation and knowingly caused physical harm to Mr. O’Brien by dragging him by his hair, kicking him in the face, and choking him,

 

State v. Himes

2023 – Ohio – 3561

Twelfth District Appellate Court

Butler County, Ohio

October 2, 2023

Ms. Zooey Himes appeals her conviction in the Fairfield Municipal Court for domestic violence.

Fairfield Ohio is located between Hamilton and Cincinatti.

 A Violent Saturday

Ms. Himes was charged by complaint with domestic violence following an October 16, 2022 altercation between Ms. Himes and her live-in boyfriend, Cameron O’Brien, during which Mr. O’Brien punched Ms. Himes in the head and Ms. Himes dragged Mr. O’Brien by his hair, hit him in the face, and choked him. Both parties suffered injuries as a result of the altercation. During the incident, Mr. O’Brien recorded a portion of the altercation on his cellphone. At the time of the incident, Ms. Himes and Mr. O’Brien were both on probation as a result of a prior domestic violence episode.

Criminal Damaging Plea was Rejected that Led to a Domestic Violence Trial

On February 16, 2023, Ms. Himes entered a guilty plea to a reduced charge of criminal damaging. The trial court accepted Ms. Himes’s guilty plea and proceeded to sentencing. During mitigation, Ms. Himes advised the trial court that “there is another side of the story,” “there is a whole lot to this that’s not being represented and I am taking the plea because I—there is so much—,” and “I’m terrified to testify.” Based upon these comments, the prosecutor expressed concerns Ms. Himes might later challenge the voluntariness of her guilty plea; the trial court stated, “I can’t allow that to be on the record with a plea,” and the matter proceeded to a bench trial. Mr. O’Brien and a police officer testified on behalf of the state. Ms. Himes testified on her own behalf. Mr. O’Brien’s videorecording was played at trial and admitted into evidence.

 Conflicting Stories on the Violence

Ms. Himes and Mr. O’Brien presented two different versions of the incident. Mr. O’Brien testified that around 3:00 a.m. on October 16, 2022, he was contently working on an art project when Ms. Himes approached him and demanded that he go to bed. Mr. O’Brien told her to leave him alone; Ms. Himes started tugging his shoulder harder and harder. Mr. O’Brien told Ms. Himes several times to stop touching him; Ms. Himes kept touching him. Ms. Himes then became upset, forcibly grabbed Mr. O’Brien’s arm, and pulled him out of his chair into another room. Both were screaming. As Mr. O’Brien tried to leave the home, Ms. Himes pulled him inside, punched him in the head, pulled his hair, and choked him repeatedly. The portion of the altercation recorded on Mr. O’Brien’s cellphone depicts Ms. Himes dragging Mr. O’Brien by his hair, hitting him in the face, and choking him, despite his pleas for her to stop. When Mr. O’Brien complained he could not breathe, Ms. Himes can be heard saying, “Good!” During the videorecording, Mr. O’Brien never touches Ms. Himes. Mr. O’Brien denied touching, harming, or threatening Ms. Himes during the incident.

Hours Later Mr. O’Brien Sought Reconciliation

On cross-examination, Mr. O’Brien authenticated several text messages he sent Ms. Himes in the afternoon of October 16, 2022, in which he told Ms. Himes he loved her, hoped to see her later, this was a last chance to make this work, to forget about last night, and inviting Ms. Himes to call him. Evidence also disclosed that Mr. O’Brien called Ms. Himes three times on the morning and afternoon following the incident.

 Ms. Himes Relied on Her Touch to Bring Mr. O’Brien Back to Reality

Ms. Himes testified that she awoke at 2:45 a.m. on October 16, 2022. Upon realizing Mr. O’Brien was not in bed with her, she “sat in bed for a solid ten minutes debating” whether she should go back to sleep or try to locate Mr. O’Brien. Ms. Himes found him sitting alone in another room in an agitated state. Ms. Himes asserted that Mr. O’Brien has a cyclical pattern of behavior where he disassociates and becomes aggressive and violent, and that she can bring him back to reality through touch. Ms. Himes started asking Mr. O’Brien what was going on and touched his hand. Mr. O’Brien asked her not to touch him. Ms. Himes testified that she had two options at that point, either back away or try to calm him down through physical touch. As she tried to talk to Mr. O’Brien, he started cursing her. Ms. Himes then tried to put her hand on his shoulder; Mr. O’Brien recoiled. Knowing that “something was going to escalate” if they were to stay in the home, Ms. Himes kept suggesting they go for a drive. Mr. O’Brien became verbally aggressive and loud, insulting and cursing her. The more Ms. Himes kept insisting they go for a ride, the more verbally aggressive Mr. O’Brien became.

 Once Mr. O’Brien Returned to Bed, Ms. Himes Wanted him to Leave

Ms. Himes testified that once Mr. O’Brien realized she was neither backing down nor getting aggressive, Mr. O’Brien ran into their bedroom and sat on the bed; Ms. Himes followed him into the bedroom. Ms. Himes once again asked that they go for a ride; Mr. O’Brien refused to leave and warned Ms. Himes that if she did not stop talking, he was “going to rage.” Ms. Himes stepped forward and leaned over, asking him, “why are you doing this?” Mr. O’Brien once again started insulting Ms. Himes and then punched her in the forehead. Ms. Himes told Mr. O’Brien to leave the home, then repeatedly asked him to sit on a chair to calm down, and finally demanded he leave the home. Ms. Himes claimed she felt threatened by Mr. O’Brien who had been physical with her in the past.

Ms. Himes Claims She was Defending Herself When She Drug Mr. O’Brien by the Hair

Ms. Himes claimed that Mr. O’Brien’s cellphone video was recorded after Mr. O’Brien had struck her in the face. Ms. Himes admitted she was dragging Mr. O’Brien by the hair, denied choking or harming him, denied she was the sole aggressor in the video, and denied she was violent in the video, instead asserting she was trying to defend herself and disarm Mr. O’Brien.

 Ms. Himes was Convicted of Domestic Violence

At the close of the bench trial, the trial court found Ms. Himes guilty of domestic violence, sentenced her to a suspended 180-day jail term, and placed her on a five-year community control term.

Appeal

 Ms. Himes filed two appeals, though only one will be evaluated in this article.

 Ms. Himes Argues She was Defending Herself and Should Not be Convicted of Domestic Violence

Ms. Himes argues her domestic violence conviction is against the manifest weight of the evidence because the state failed to disprove she acted in self-defense. In support of her argument, Ms. Himes underlines the fact that Mr. O’Brien had punched her in the forehead minutes before she attempted to expel him from her home and that she felt threatened by Mr. O’Brien given his state of mind during the incident.

 City of Fairfield Domestic Violence Law

Ms. Himes was convicted of domestic violence in violation of Fairfield Municipal Ordinance 537.14(A), which provides, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” Pursuant to R.C. 2901.22(B), “[a] person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature.” “Physical harm to persons” means “any injury, illness or other physiological impairment, regardless of its gravity or duration.” Fairfield Municipal Ordinance 501.01(c).

Elements of the Self-Defense Doctrine

In addition to the elements of domestic violence set forth above, the state also had the burden of proving beyond a reasonable doubt that Ms. Himes did not act in self- defense. See O.R.C. §2901.05(B)(1) (effective March 28, 2019). In a case involving the use of nondeadly force, an accused is justified in using force against another if:

(1) She was not at fault in creating the situation giving rise to the altercation and

(2) She had reasonable grounds to believe and an honest belief, even though mistaken, that she was in imminent danger of bodily harm and her only means to protect herself from the danger was by the use of force not likely to cause death or great bodily harm. State v. Clemmons, 2020-Ohio-5394.

 Twelfth District Appellate Court Determines Ms. Hines was Not Acting in Self-Defense

After thoroughly reviewing the record, we find that the trial court did not lose its way and create a manifest miscarriage of justice in finding Ms. Himes guilty of domestic violence. “[T]he first element of a self-defense claim does not require in all situations that the [defendant] must have refrained from throwing the first punch”or a showing that the defendant played no part in creating the situation giving rise to the affray. State v. Gillespie, 2007-Ohio-3439.  Rather, the first element of a self-defense claim provides that the defendant must not be at fault in creating the situation that gave rise to the affray. This concept is broader than simply not being the immediate aggressor. Id. A person may not provoke an assault or voluntarily enter an encounter and then claim a right of self-defense. State v. Nichols, 2002 Ohio App. LEXIS 329 (Jan. 22, 2002).

 Bed Deliberation and Repeated Touches Supported Ms. Himes Conviction

Even if, under Ms. Himes’s version, Mr. O’Brien threw the first punch, the greater amount of credible evidence offered at trial established beyond a reasonable doubt that Ms. Himes was at fault in creating the situation. By her own admission, Ms. Himes initiated the encounter after she realized Mr. O’Brien was not in bed and deliberating “for a solid ten minutes” whether she should simply go back to sleep. Ms. Himes sought out and located Mr. O’Brien, who was working on an art project and was in an agitated state, and engaged with him. Despite observing and recognizing an escalation in Mr. O’Brien’s demeanor, despite his requests that she neither touch him nor speak to him, despite his attempt to get away from Ms. Himes and his subsequent warning he was “going to rage,” Ms. Himes kept engaging with and touching Mr. O’Brien, and ultimately dragged him by his hair, hit him in the face, and choked him. Ohio courts have long recognized that a defendant is at fault in creating the situation giving rise to the affray when the defendant chooses to confront the victim or knowingly go to a place where the victim will be, even when the defendant’s action was otherwise completely lawful.

 Appellate Court Defers to Trial Court on Conflicting Testimony

The trial court was presented with conflicting versions of events by Ms. Himes and Mr. O’Brien. However, as the trier of fact, the trial court was best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations to judge the credibility of witnesses and the weight to be given the evidence. While conflicting evidence was presented at trial, Ms. Himes’s conviction is not against the manifest weight of the evidence simply because the trier of fact believed the testimony and evidence presented by the state.

 Ms. Himes Appeal is Denied

Accordingly, as the state proved beyond a reasonable doubt that Ms. Himes created the situation giving rise to the altercation and knowingly caused physical harm to Mr. O’Brien by dragging him by his hair, kicking him in the face, and choking him, we find that Ms. Himes’s domestic violence conviction is not against the manifest weight of the evidence.

 Ms. Himes’s second assignment of error is overruled.

Information for this article was obtained from State v. Himes, 2023 – Ohio – 3561.

State v. Himes, 2023 – Ohio – 3561 was issued by the Twelfth District Appellate Court on October 2, 2023 and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.

Lessons Learned:

  1. What are the three elements of Self-Defense Doctrine? (1) Defendant was not at fault in creating the situation giving rise to the affray. (2) The defendant has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of force. (3) The defendant must not have violated any duty to retreat or avoid the danger. State v. Williford, 49 Ohio St.3d 247, 249 (1990) The Williford case was issued by the Supreme Court of Ohio on Wednesday March 14, 1990, therefore it is binding throughout the entire State of Ohio.
  2. Ohio Legislature Modified the Duty to Retreat Statute – On Tuesday April 6, 2021 the Ohio Legislature enacted the Duty to Retreat statute. [A] person has no duty to retreat before using force in self-defense of another, or defense of that person’s residence if that person is in a place which the person lawfully has a right to be. No Duty to Retreat in Residence or VehicleR.C. §2901.09
  3. Ms. Himes was Not Engaged in Self-Defense – The Twelfth District Appellate Court recognized that Ms. Himes was not engaged in self-defense when it opined “Ohio courts have long recognized that a defendant is at fault in creating the situation giving rise to the affray when the defendant chooses to confront the victim or knowingly go to a place where the victim will be, even when the defendant’s action was otherwise completely lawful.”. Here the court focused the following salient facts; Ms. Himes sat in bed and contemplated to initiate contact with Mr. O’Brien, and she initiated her touch in a feeble attempt to calm him. These actions were applied to the first element of the Self-Defense Doctrine “Defendant was not at fault in creating the situation giving rise to the affray.” Here the court determined Ms. Himes was at fault in creating the situation that gave rise to the affray with Mr. O’Brien.
  4. Pre-Sent Arms! Both the unidentified Fairfield Police Officers and the Butler County Prosecutor’s Office should be highly commended.  Well done!

Does your agency train on Domestic Violence?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.