Ms. Smith not only escalated the situation by verbally threatening A.G., but further initiated the physical altercation by closing the space between her and A.G. and kicking A.G. in the midsection. A.G. testified that during the scuffle that then ensued, Ms. Smith deliberately struck her in the face while she was in a defenseless position, resulting in a fractured nasal bone.

 

State v. Smith

2023 – Ohio – 3973

Eighth District Appellate Court

Cuyahoga County, Ohio

November 2, 2023

At trial, A.G. testified that on Friday May 3, 2019, she was working as a dancer at the Hustler Club at 1101 Center Street, Cleveland, Ohio.

Ms. Smith assaulted a stripper at the Hustler Club, 1101 Center Street, Cleveland, Ohio and claimed Self-Defense.

Dispute Begins with what is Included in a $150 Lap Dance

During her shift, A.G. performed a private dance with an unidentified male in exchange for $150. A.G. testified that the male became upset with her when she refused his attempts to engage in further sexual conduct in the private room. The male began calling A.G. names and later complained about her to his friend, Ms. Alysia Smith, who was also working as a dancer at the Hustler Club that evening.

Ms. Smith Assaults A.G. Because She Believed the $150 Should Have been Spent on Drugs

At the conclusion of her shift, A.G. was confronted by Ms. Smith in the employee’s locker room. A.G. testified that Ms. Smith was “yelling and screaming,” and threatened to “kick [her] ass” for “taking advantage” of Ms. Smith’s friend. A.G. described the events that transpired as follows:

So everyone in the locker room went silent. Said shut up, stop yelling at her, and leave her alone and [Ms. Smith] wouldn’t. She comes around the corner and starts yelling and screaming, you fucking bitch, you cannot — you took advantage of him. That was my money for drugs — all this shit. [Ms. Smith] says that was my money you took. And I’m, like, I ignored it for a few minutes. I just kept my head down and she wouldn’t stop. I had to leave the locker room and I knew I had to walk past her and she just wouldn’t shut up. I’m, like, everyone kept telling her stop, Alysia, leave her alone because they knew I’m not like that. I don’t fight or anything. … And then she — I kind of poked my head around the corner and I said that’s what we do for men here, we dance for them, and they pay us. I didn’t steal anything. And then she charged at me. And then all I remember was trying to block my face because I had just gotten a rhinoplasty, a nose job, four months prior, which I saved up a long time for … I couldn’t believe, like, what the hell is going on? … I was protecting my face. She kept trying to — she was just, like, swinging and kicking and I — I never fought anyone. I was trying to protect my face and trying to push her away and screaming at her to stop, leave me alone, and she wouldn’t.

The other girls jumped in and pulled her off me and both of us had our arms to our sides by the other girls holding us back. And then all of a sudden, she gets her arm out of the grip and jacks me in the face while my arms are to my side. I just hear my nose crack… There’s blood everywhere. And, yeah, that’s it.

Ms. Smith Fractured A.G.’s Nasal Bone

Following the altercation, A.G. called 911 to report the assault. The police arrived at the scene and took pictures of A.G.’s face and the injury to her nose. A.G. later drove herself to MetroHealth Hospital, where it was determined that she had a fractured nasal bone.

Strip Club Video

The incident was captured by the club’s surveillance monitoring system in its entirety. The video, marked state’s exhibit No. 1, was played for the jury while A.G. narrated the events as they transpired. In relevant part, A.G. maintained that she did not initiate, provoke, or otherwise participate in the physical altercation with Ms. Smith. Rather, A.G. testified that she was only concerned with protecting her face, stating, “I didn’t want to hit her. I didn’t want to fight her. I wanted it to stop. I didn’t want anyone to get hurt.”

A.G. Attempted to De-Escalate the Dispute on the $150 Lap Dance

On cross-examination, A.G. admitted that her medical records indicated that she tested positive for ETOH (alcohol). She maintained, however, that she was not impaired at the time of the altercation. Regarding the physical altercation, A.G. reiterated that she did not wish to fight Ms. Smith and was attempting to defuse the situation. A.G. clarified that although she was primarily concerned with the single punch that broke her nose, Ms. Smith also pulled her hair, struck her on the side of the head, and kicked her during the altercation. Finally, A.G. denied defense counsel’s suggestion that she initiated the physical confrontation by “coming at [Ms. Smith]” while raising her hands in a “threatening” manner. A.G. explained that she was “verbally telling [Ms. Smith] to stop” and “was holding [her] hands in the air kind of exasperated. I wanted to leave.”

Ms. Smith Had no Recollection of the Physical Altercation with What’s-Her-Name

Detective Bruce Garner (“Det. Garner”) of the Cleveland Police Department testified that he was assigned to investigate the allegations of assault levied against Ms. Smith in this matter. In the course of his investigation, Det. Garner conferred with A.G., gained access to A.G.’s medical records, obtained a copy of the surveillance video from the Hustler Club, and interviewed Ms. Smith while she was in county jail. During the interview, which was captured by Det. Garner’s body camera, Ms. Smith indicated that she did not recall the physical altercation with A.G. and did not even know A.G.’s name.

Once Ms. Smith Recalled the Physical Altercation, She Claimed that She Used her Martial Arts Training to Defend Herself in Her Very First Fight

At the conclusion of the state’s case, Ms. Smith made a motion for acquittal pursuant to Crim.R. 29, which the trial court denied. Ms. Smith testified on her own behalf. She confirmed that she was working as a dancer at the Hustler Club on May 3, 2019, and that she was familiar with the male A.G. had approached in the club that evening. Ms. Smith maintained that the unidentified male alleged that A.G. had stolen money from him during a private dance. Ms. Smith testified that when she confronted A.G. in the employee locker room, A.G. denied stealing money from the male. Ms. Smith admitted that she did not believe A.G. and called her a “money hungry … B word.” According to Ms. Smith, the verbal argument escalated into a physical dispute once A.G. came around the corner of the locker room and “charged at [her]” while holding something in her hand. Ms. Smith testified that she had no intention of fighting A.G. and that she was acting in self-defense when she first kicked A.G. She explained her reaction as follows:

I reacted. I was afraid. I mean, this is my first fight — outside of martial arts. We’re taught self-defense and discipline. That’s the first time I had to use it and you cannot be the aggressor.

Jury Convicts Ms. Smith of Felonious Assault

Ms. Smith maintained that she unknowingly made contact with A.G.’s nose while she was attempting to shove A.G. away from her while they were on the ground. At the close of the defense’s case, Ms. Smith renewed her motion for acquittal, which the trial court denied. On October 26, 2022, the jury found Ms. Smith guilty of felonious assault, a felony of the second degree. Over defense counsel’s objection, Ms. Smith was sentenced to an indefinite prison term of four to six years pursuant to the Reagan Tokes Law, effective March 22, 2019.

Ms. Smith filed four appeals; though only one will be evaluated in this article – Whether Ms. Smith’s Physical Violence Comported with the Self-Defense Doctrine.

In the first assignment of error, Ms. Smith argues her conviction is against the manifest weight of the evidence. She contends “that the jury’s conclusion that the state met its burden of persuasion and had disproved the affirmative defense of self-defense beyond a reasonable doubt [is] against the manifest weight of the evidence.”

Self Defense Doctrine

Ohio Revised Code

Under Ohio law, a person is permitted to act in self-defense. O.R.C. §2901.05(B)(1). In cases involving the use of nondeadly force, the affirmative defense of self-defense applies where:

Self Defense Doctrine

Elements

(1) The defendant was not at fault in creating the situation giving rise to the affray in which the use of force occurred

(2) The defendant had reasonable grounds to believe and an honest belief, even if mistaken, that he or she was in imminent danger of bodily harm and

(3) The only means to protect himself or herself from such danger was the use of force not likely to cause death or great bodily harm, i.e., the defendant did not use more force than was reasonably necessary to defend against the imminent danger of bodily harm.

Self Defense

There is no duty to retreat to avoid the danger in cases involving the use of nondeadly force, even if retreat is possible.

Pursuant to O.R.C. §2901.05(B)(1), if evidence is presented at trial “[T]hat tends to support that the accused person used the force in self-defense” then “the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense.” In other words, if the accused satisfies the burden of presenting evidence that tends to support that they acted in self-defense, the burden shifts to the state to disprove at least one of the elements above. The state’s burden of persuasion is subject to a manifest-weight review on appeal.

On appeal, Ms. Smith suggests that the greater weight of the evidence demonstrates that she acted in self-defense during the physical confrontation with A.G. on May 3, 2019. Alternatively, Ms. Smith contends that the jury clearly lost its way in finding her guilty of felonious assault because “[T]here is no evidence that she acted knowingly or with any specific purpose to cause injury or harm to [A.G].” Ms. Smith asserts that she was merely attempting to push A.G. away and did not intend to strike her nose.

Facts Applied to the Three-Part Test

We disagree with Ms. Smith’s interpretation of the relevant evidence adduced at trial. Viewing the record in its entirety, we cannot say the jury lost its way when it negated Ms. Smith’s self-defense claim and found any one of the following to be true:

(1) Ms. Smith was at fault in creating the situation giving rise to the affray, or

(2) Ms. Smith did not have a bona fide belief that she was in imminent danger of bodily harm, or

(3) Ms. Smith’s only means to protect herself from such danger was the use of nondeadly force.

Strip Club Video Did not Comport with Ms. Smith’s Testimony

In this case, the jury heard directly from Ms. Smith and A.G. concerning their roles in the physical altercation and the events immediately preceding and following the incident. The altercation was captured by the club’s surveillance system in its entirety, and the jury was capable of comparing the video evidence to the conflicting testimony offered by A.G. and Ms. Smith. As previously discussed, the video footage captured the parties’ movements and demonstrated that Ms. Smith not only escalated the situation by verbally threatening A.G., but also initiated the physical altercation by closing the space between her and A.G. and kicking A.G. in the midsection. A.G. testified that during the scuffle that then ensued, Ms. Smith deliberately struck her in the face while she was in a defenseless position, resulting in a fractured nasal bone.

Conclusion and Holding

Under these circumstances, the jury’s determination that the state’s evidence was more credible than Ms. Smith’s was not against the manifest weight of the evidence and did not result in a miscarriage of justice. This is not the exceptional case in which the evidence weighs heavily against Ms. Smith’s conviction for felonious assault.

Ms. Smith’s first assignment of error is overruled.

Ms. Smith’s sentence of four to six years in prison was upheld.

Information for this article was obtained from State v. Smith, 2023 – Ohio – 3973

State v. Smith, 2023 – Ohio – 3973 was issued by the Eighth District Appellate Court on November 2, 2023 and is binding in Cuyahoga County, Ohio.

Lessons Learned:

  1. Self-Defense Doctrine and the Ohio Revised Code – The Self-Defense Doctrine was established by the Supreme Court of Ohio on March 14, 1990 in State v. Williford, 49 Ohio St.3d 247: 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 and 3) The defendant must not have violated any duty to retreat or avoid the danger. Id at 249.  These three elements must also be contrasted by the changes the Ohio Legislature made to the Ohio Revised Code that became effective on April 6, 2021, in O.R.C. §2901.05(B) “[A] person is allowed to act in in self-defense … If … there is evidence presented that tends to support that the accused person used the force in self-defense.
  2. Smith Did Not Act in Self-Defense – In this case Ms. Smith was the primary aggressor in the attack on Victim A.G. The attack on A.G. began with a dispute over A.G.’s $150 lap dance.  The Eighth District Appellate Court applied the three elements of the Self-Defense Doctrine to the actions of Ms. Smith and agreed with the trial jury and judge that Ms. Smith was the aggressor and her physical altercation with A.G. was not in her own [Ms. Smith’s] self-defense.
  3. Pre-Sent Arms! Cleveland Police Detective Bruce Garner should be highly commended for his investigation, charging and working with the City of Cleveland Attorney’s Office in the successful prosecution of Ms. Smith. Well done!

Does your agency train on the Self-Defense Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.