[Cite as Cleveland v. Borden, 2017-Ohio-9016.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105339
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
CORONA BORDEN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 2016 CRB 007146
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 14, 2017 ATTORNEYS FOR APPELLANT
Carmen P. Naso Milton A. Kramer Law Clinic Case Western Reserve University 11075 East Blvd. Cleveland, Ohio 44106
Scott Bobbit Marcus Mazurowski Kristi Winner Certified Legal Interns Milton A. Kramer Law Clinic Case Western Reserve University 11075 East Blvd. Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE
Barbara Langhenry City of Cleveland Law Director By: Kimberly G. Barnett-Mills Chief Assistant Prosecutor Aric Kinast Assistant City Prosecutor 1200 Ontario Street Justice Center, 8th Floor Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Corona Borden appeals her convictions for assault and
aggravated menacing in Cleveland Municipal Court. We affirm.
Factual and Procedural Background
{¶2} Borden was charged with assault and aggravated menacing stemming from a
March 21, 2016 incident at the Laronde Apartments in Cleveland, Ohio. The case
proceeded to a bench trial where the following facts were adduced.
{¶3} Shirley Pierre testified that she did not know Borden. On that day, she
encountered Borden in the vestibule of the Laronde Apartments. The building has a
security door that requires visitors to be buzzed in by a resident in order to gain entry.
When Pierre opened the front door to check her mail in the vestibule, Borden moved past
her and entered the lobby of the building. Pierre asked Borden not to enter the building
because it was against the building policy and she would not have allowed Borden
entry due to the fact that she did not know her. Borden refused and placed a bag and a
suitcase near the front desk in the lobby.
{¶4} Richard Pollard, a 72-year old resident at the Laronde Apartments, was
present in the lobby at the request of the building manager in order to ensure access to the
building for maintenance workers. Pollard had experience working at the front desk of
the building and was familiar with the procedure for visitors to gain admission to the
building. Pollard was alerted to a heated argument between Pierre and Borden, who was
unfamiliar to him. Pollard intervened in the argument and Borden told him she was a home health aide for a resident in the building and that she was trying to reach her
daughter on the second floor. Pollard informed Borden that she needed to sign in at the
front desk and asked her name. Borden refused to provide her name and began to direct
profanity at Pollard and Pierre. In addition to the profanity Pierre testified that Borden
stated, “I’m tired of you old people trying to tell us what to do. I do what I want.”
{¶5} In response to Borden’s profanity Pollard testified that he informed Borden
that instead of calling the police he was going to move Borden’s bags to the vestibule
where she could continue to attempt to contact whoever she was trying to reach. Pollard
stated, “I’m going to help you move your groceries out here because this profanity is too
much.” Pollard than began to pull Borden’s luggage to the vestibule. Borden
responded by pushing Pollard and he fell over the arm of a nearby couch, landing in the
middle of the couch. The encounter was captured on the building’s video surveillance
system and offered as evidence at trial.
{¶6} Pollard testified that he got off the couch and called the Cuyahoga
Metropolitan Housing Authority police. Pierre testified that after Borden pushed
Pollard, Borden began making threats saying, “I’m going to shoot both of you. I have a
gun. I have a permit.” The security video reflects that the various parties moved in and
out of the lobby while awaiting the arrival of the police. Pierre testified that Borden
kept up a steady conversation about her gun and the fact that her husband was a police
officer. Pierre testified that she did not know if Borden had a gun on her person but was
fearful of her safety because of Borden’s threats and believed that Borden could come back and harm her. She testified that she remained in the lobby awaiting the police
despite her fear because she felt she and Pollard were in the situation together.
{¶7} CMHA Police Officer Rhett Lariccia responded to the Laronde Apartments
and separated Borden from Pollard. Lariccia testified that Borden was irate and said of
Pollard, “I whooped his * * * [posterior].” Pollard testified that he sustained a back
injury as a result of his fall.
{¶8} The trial court found Borden guilty on both counts and imposed suspended
sentences of 180 days in jail on both counts. The court ordered Borden to serve one year
of community control and to stay away from the Laronde Apartments.
Law and Analysis
I. Manifest Weight
{¶9} In her sole assignment of error, Borden argues that her convictions were
against the manifest weight of the evidence.
{¶10} A manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion at trial. State v.
Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997); State v.
Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader
review, a reviewing court may determine that a judgment of a trial court is sustained by
sufficient evidence, but nevertheless conclude that the judgment is against the weight of
the evidence. {¶11} “When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may
disagree with the factfinder’s resolution of conflicting testimony.” Thompkins at 387,
quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The
reviewing court must examine the entire record, weigh the evidence and all reasonable
inferences, consider the witnesses’ credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st
Dist.1983). In conducting such a review, this court remains mindful that the credibility of
witnesses and the weight of the evidence are matters primarily for the trier of fact to
assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and
two of the syllabus. Reversal on manifest weight grounds is reserved for the “‘exceptional
case in which the evidence weighs heavily against the conviction.”’ Thompkins at 387,
quoting Martin, supra.
{¶12} Borden argues that her conviction for assault was against the manifest
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[Cite as Cleveland v. Borden, 2017-Ohio-9016.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105339
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
CORONA BORDEN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 2016 CRB 007146
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 14, 2017 ATTORNEYS FOR APPELLANT
Carmen P. Naso Milton A. Kramer Law Clinic Case Western Reserve University 11075 East Blvd. Cleveland, Ohio 44106
Scott Bobbit Marcus Mazurowski Kristi Winner Certified Legal Interns Milton A. Kramer Law Clinic Case Western Reserve University 11075 East Blvd. Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE
Barbara Langhenry City of Cleveland Law Director By: Kimberly G. Barnett-Mills Chief Assistant Prosecutor Aric Kinast Assistant City Prosecutor 1200 Ontario Street Justice Center, 8th Floor Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Corona Borden appeals her convictions for assault and
aggravated menacing in Cleveland Municipal Court. We affirm.
Factual and Procedural Background
{¶2} Borden was charged with assault and aggravated menacing stemming from a
March 21, 2016 incident at the Laronde Apartments in Cleveland, Ohio. The case
proceeded to a bench trial where the following facts were adduced.
{¶3} Shirley Pierre testified that she did not know Borden. On that day, she
encountered Borden in the vestibule of the Laronde Apartments. The building has a
security door that requires visitors to be buzzed in by a resident in order to gain entry.
When Pierre opened the front door to check her mail in the vestibule, Borden moved past
her and entered the lobby of the building. Pierre asked Borden not to enter the building
because it was against the building policy and she would not have allowed Borden
entry due to the fact that she did not know her. Borden refused and placed a bag and a
suitcase near the front desk in the lobby.
{¶4} Richard Pollard, a 72-year old resident at the Laronde Apartments, was
present in the lobby at the request of the building manager in order to ensure access to the
building for maintenance workers. Pollard had experience working at the front desk of
the building and was familiar with the procedure for visitors to gain admission to the
building. Pollard was alerted to a heated argument between Pierre and Borden, who was
unfamiliar to him. Pollard intervened in the argument and Borden told him she was a home health aide for a resident in the building and that she was trying to reach her
daughter on the second floor. Pollard informed Borden that she needed to sign in at the
front desk and asked her name. Borden refused to provide her name and began to direct
profanity at Pollard and Pierre. In addition to the profanity Pierre testified that Borden
stated, “I’m tired of you old people trying to tell us what to do. I do what I want.”
{¶5} In response to Borden’s profanity Pollard testified that he informed Borden
that instead of calling the police he was going to move Borden’s bags to the vestibule
where she could continue to attempt to contact whoever she was trying to reach. Pollard
stated, “I’m going to help you move your groceries out here because this profanity is too
much.” Pollard than began to pull Borden’s luggage to the vestibule. Borden
responded by pushing Pollard and he fell over the arm of a nearby couch, landing in the
middle of the couch. The encounter was captured on the building’s video surveillance
system and offered as evidence at trial.
{¶6} Pollard testified that he got off the couch and called the Cuyahoga
Metropolitan Housing Authority police. Pierre testified that after Borden pushed
Pollard, Borden began making threats saying, “I’m going to shoot both of you. I have a
gun. I have a permit.” The security video reflects that the various parties moved in and
out of the lobby while awaiting the arrival of the police. Pierre testified that Borden
kept up a steady conversation about her gun and the fact that her husband was a police
officer. Pierre testified that she did not know if Borden had a gun on her person but was
fearful of her safety because of Borden’s threats and believed that Borden could come back and harm her. She testified that she remained in the lobby awaiting the police
despite her fear because she felt she and Pollard were in the situation together.
{¶7} CMHA Police Officer Rhett Lariccia responded to the Laronde Apartments
and separated Borden from Pollard. Lariccia testified that Borden was irate and said of
Pollard, “I whooped his * * * [posterior].” Pollard testified that he sustained a back
injury as a result of his fall.
{¶8} The trial court found Borden guilty on both counts and imposed suspended
sentences of 180 days in jail on both counts. The court ordered Borden to serve one year
of community control and to stay away from the Laronde Apartments.
Law and Analysis
I. Manifest Weight
{¶9} In her sole assignment of error, Borden argues that her convictions were
against the manifest weight of the evidence.
{¶10} A manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion at trial. State v.
Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997); State v.
Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader
review, a reviewing court may determine that a judgment of a trial court is sustained by
sufficient evidence, but nevertheless conclude that the judgment is against the weight of
the evidence. {¶11} “When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may
disagree with the factfinder’s resolution of conflicting testimony.” Thompkins at 387,
quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The
reviewing court must examine the entire record, weigh the evidence and all reasonable
inferences, consider the witnesses’ credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st
Dist.1983). In conducting such a review, this court remains mindful that the credibility of
witnesses and the weight of the evidence are matters primarily for the trier of fact to
assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and
two of the syllabus. Reversal on manifest weight grounds is reserved for the “‘exceptional
case in which the evidence weighs heavily against the conviction.”’ Thompkins at 387,
quoting Martin, supra.
{¶12} Borden argues that her conviction for assault was against the manifest
weight of the evidence because the trial court erred in concluding that (1) she knowingly
caused physical harm to Pollard and (2) she was not justified in protecting her property.
{¶13} Whether a person acted “knowingly” for purposes of an alleged crime, must
be ascertained from the totality of the surrounding circumstances. State v. Clark, 8th Dist.
Cuyahoga No. 83318, 2004-Ohio-2162, ¶ 12. Specific intent to cause a certain result is not required to establish that a person acted “knowingly.” State v. Dixon, 8th Dist.
Cuyahoga No. 82951, 2004-Ohio-2406. This is because intent to commit an offense is not
easily proved with direct evidence. See State v. Brown, 8th Dist. Cuyahoga No. 68761,
1996 Ohio App. LEXIS 801 (Feb. 29, 1996). The factfinder may find an intent to commit
an act from the surrounding circumstances where it flows from the natural and probable
consequence of a defendant’s actions. Id.
{¶14} In this instance, the surveillance video reflected that Borden employed such
force against Pollard that he was thrown over the arm of a sofa. When one employs
force sufficient to knock another off their feet, they act with knowledge that physical
harm is a natural and probable consequence of their action. In fact, it was fortuitous for
Borden that Pollard landed on a sofa rather than on the ground where he might have
suffered a more serious injury. We find no merit to Borden’s first argument.
{¶15} We similarly find no merit to Borden’s defense of property argument. To
prove the affirmative defense of defense of property, the defendant must present evidence
that she reasonably believed her conduct was necessary to defend her property against the
imminent use of unlawful force, and the force she used in defense was not likely to cause
death or great bodily harm. State v. Moses, 10th Dist. Franklin No. 13AP-816,
2014-Ohio-1748, ¶ 41. In this instance, we cannot say that the trial court’s rejection of
Borden’s defense of property argument was against the manifest weight of the evidence.
The surveillance video reflects that Borden improperly gained entry to the lobby of the
Laronde Apartments and the testimony of both Pollard and Pierre established that Pollard explained he was relocating Borden’s items to the vestibule where they belonged. There
is no evidence to support Borden’s contention that a reasonable person would have
believed Pollard was attempting to steal or damage Borden’s property. We find no error
in the trial court’s judgment that Borden employed force unnecessary to the situation.
{¶16} Finally, Borden argues that her conviction for aggravated menacing was
against the manifest weight of the evidence because Pierre was not sufficiently fearful of
serious physical harm. The relevant question here is whether the victim subjectively
believed at the time of the offense that the offender would cause serious physical harm.
Garfield Hts. v. Greer, 8th Dist. Cuyahoga No. 87078, 2006-Ohio-5936, ¶ 5, citing State
v. Perkins, 8th Dist. Cuyahoga No. 86685, 2006-Ohio-3678, ¶ 14.
{¶17} In Cleveland v. Sands, 8th Dist. Cuyahoga No. 105141, 2017-Ohio-8313, we
upheld a conviction for aggravated menacing where the defendant made threatening
phone calls and texts and threatened to shoot the victim’s boyfriend. We found that the
victim, at the time of the threats, possessed a subjective belief that the defendant would
cause her and her boyfriend serious physical harm based on testimony from the victim
that she took the defendant’s threats seriously.
{¶18} Similarly, in this instance, the trial court heard testimony from Pierre that
although she did not know if Borden was armed at the time, she believed that Borden
could come back with a gun and harm her. Pierre testified that she was fearful of her
safety. According to Pierre, Borden supported her threat to shoot Pierre and Pollard
with a steady conversation about the fact that she had a permit to carry a gun and her husband was a police officer. Although Pierre remained in the lobby in relatively close
proximity to Borden while awaiting the arrival of the police, Pierre explained that she
chose not to leave out of a sense of obligation to remain in support of Pollard. Finally, the
credibility of Borden’s threats against Pierre was enhanced by the fact that Pierre had
already witnessed Borden assault Pollard. We cannot say that the trial court’s finding
that Borden’s threats caused Pierre to subjectively fear for her safety was against the
manifest weight of the evidence.
{¶19} Borden’s sole assignment of error is overruled.
{¶20} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and FRANK D. CELEBREZZE, JR., J., CONCUR