[Cite as Cleveland v. Gaston, 2011-Ohio-3981.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95768
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
ANTHONY GASTON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 10 CRB 007904
BEFORE: S. Gallagher, J., Kilbane, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: August 11, 2011 ATTORNEYS FOR APPELLANT
Robert Tobik Chief Public Defender
BY: David M. King Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
Mary Santez Legal Intern Office of the Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert J. Triozzi Director of Law City of Cleveland
By: Victor R. Perez Chief City Prosecutor Jonathan L. Cudnik Assistant City Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.: {¶ 1} Appellant Anthony Gaston (“Gaston”) appeals his conviction from the
Cleveland Municipal Court for misdemeanor assault. For the reasons stated herein, we
affirm the conviction.
{¶ 2} Charmaine Burton and Gaston were involved in a relationship for about one
year prior to the altercation at issue in the current case. In March 2008, Burton picked
Gaston up from work to give him a ride to a recreation center where Gaston regularly
played basketball. Along the way, they began arguing about relationship issues. The
argument remained verbal until their arrival at the recreation center. Burton drove
through the parking lot to the front door. Instead of allowing Gaston to exit the car, she
locked the doors and continued to drive around the parking lot, thereby continuing the
verbal disagreement. Gaston conceded that Burton was driving fast, but not recklessly.
Burton repeated this procedure two more times. She would pull up to the entrance to let
Gaston out, but instead locked the doors and drove off.
{¶ 3} After the third time, Gaston grabbed for the steering wheel of the
still-moving car in an attempt to seize control. Burton’s and Gaston’s versions of events
diverge at this point. Burton claims that Gaston grabbed the wheel and then her hair.
He then pushed her head into the side of the car, punched her repeatedly, and pulled her
over the center console before the car finally stopped on a nearby tree lawn. Gaston
testified that when he was grabbing for the steering wheel, Burton punched him in the
mouth. He responded by grabbing her hair and “holding her down” to protect himself while he exited the vehicle. After either version, when the car stopped on the tree lawn,
Gaston jumped out.
{¶ 4} A few witnesses outside the recreation center testified that Burton tried to
chase Gaston with her car. Gaston ran to the house of his uncle, who lived across the
street from the recreation center, and locked himself inside. Burton got out of the car
and started banging on the door. She was yelling obscenities and threats at Gaston.
Gaston remained inside, and Burton eventually left.
{¶ 5} After hearing the evidence, the trial court found Gaston guilty of
misdemeanor assault and sentenced him to serve 180 days in jail, with 176 days
suspended and credit for four days served. The court also imposed a $1,000 fine, which
was suspended. It is from this conviction that Gaston timely appeals, raising two
assignments of error.
{¶ 6} Gaston’s first assignment of error provides as follows: “The court erred in
not considering the affirmative defense of self-defense in violation of United States
Constitution Amendments V and XIV and Ohio Constitution Article I, Sections 1, 10, and
16.” Gaston’s first assignment of error essentially challenges the weight of the evidence
establishing his affirmative defense, an issue raised in his second assignment of error,
which provides as follows: “Defendant’s conviction for assault was against the manifest
weight of evidence.” In his second assignment of error, Gaston argues that he
sufficiently proved his actions were done in self-defense. We find both assignments of
error to be without merit. {¶ 7} In reviewing a claim challenging the manifest weight of the evidence, the
question to be answered is whether “there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt.
In conducting this review, we must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” (Internal citations and quotations
omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶ 8} Gaston was convicted of a misdemeanor assault in violation of Cleveland
Codified Ordinances 621.03, which provides that no “person shall knowingly cause or
attempt to cause physical harm to another * * * [or n]o person shall recklessly cause
serious physical harm to another.” Gaston did not dispute that a physical altercation took
place. Gaston steadfastly maintained that his actions were in self-defense. The only
issue, therefore, was whether the physical harm was justified under the circumstances.
{¶ 9} To establish self-defense at trial, the defendant must show the following:
(1) he was not at fault in creating the situation giving rise to the disturbance; (2) he had a
bona fide belief that he was in imminent danger of death or great bodily harm; (3) that his
only means of escape from such danger was in the use of such force; and (4) he must not
have violated any duty to retreat or avoid the danger. State v. Melchior (1978), 56 Ohio
St.2d 15, 20-21, 381 N.E.2d 195. The defendant fails to establish that he acted in self-defense if he fails to prove any one of these elements by a preponderance of the
evidence. See State v. Jackson (1986), 22 Ohio St.3d 281, 284, 490 N.E.2d 893.
{¶ 10} We first note that the court heard testimony and closing arguments in which
Gaston raised the issue of self-defense. Nothing in the record indicates that the court
failed to consider the theory, and we must presume that in a bench trial, unless the record
affirmatively appears to the contrary, the trial court considered the appropriate defenses.
State v. Perez, Cuyahoga App. No. 91227, 2009-Ohio-959, ¶ 61. More important, we
find that Gaston’s version of events are insufficient to even establish a self-defense claim.
Gaston characterizes his actions as restraints to prevent Burton from committing acts of
violence against him. We disagree with this characterization. Gaston overlooks the
fact, according to his testimony, that he escalated the verbal argument into a physical one
when he interfered with Burton’s control of her moving car.
{¶ 11} Even if we believe Gaston and limit our consideration to his version of the
incident, it is undisputed that he instigated the physical aspect of the altercation. We
acknowledge that Gaston does not characterize his actions as such, but the facts
nonetheless establish that he was the first to use physical force. He cannot then claim his
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[Cite as Cleveland v. Gaston, 2011-Ohio-3981.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95768
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
ANTHONY GASTON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 10 CRB 007904
BEFORE: S. Gallagher, J., Kilbane, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: August 11, 2011 ATTORNEYS FOR APPELLANT
Robert Tobik Chief Public Defender
BY: David M. King Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
Mary Santez Legal Intern Office of the Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert J. Triozzi Director of Law City of Cleveland
By: Victor R. Perez Chief City Prosecutor Jonathan L. Cudnik Assistant City Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.: {¶ 1} Appellant Anthony Gaston (“Gaston”) appeals his conviction from the
Cleveland Municipal Court for misdemeanor assault. For the reasons stated herein, we
affirm the conviction.
{¶ 2} Charmaine Burton and Gaston were involved in a relationship for about one
year prior to the altercation at issue in the current case. In March 2008, Burton picked
Gaston up from work to give him a ride to a recreation center where Gaston regularly
played basketball. Along the way, they began arguing about relationship issues. The
argument remained verbal until their arrival at the recreation center. Burton drove
through the parking lot to the front door. Instead of allowing Gaston to exit the car, she
locked the doors and continued to drive around the parking lot, thereby continuing the
verbal disagreement. Gaston conceded that Burton was driving fast, but not recklessly.
Burton repeated this procedure two more times. She would pull up to the entrance to let
Gaston out, but instead locked the doors and drove off.
{¶ 3} After the third time, Gaston grabbed for the steering wheel of the
still-moving car in an attempt to seize control. Burton’s and Gaston’s versions of events
diverge at this point. Burton claims that Gaston grabbed the wheel and then her hair.
He then pushed her head into the side of the car, punched her repeatedly, and pulled her
over the center console before the car finally stopped on a nearby tree lawn. Gaston
testified that when he was grabbing for the steering wheel, Burton punched him in the
mouth. He responded by grabbing her hair and “holding her down” to protect himself while he exited the vehicle. After either version, when the car stopped on the tree lawn,
Gaston jumped out.
{¶ 4} A few witnesses outside the recreation center testified that Burton tried to
chase Gaston with her car. Gaston ran to the house of his uncle, who lived across the
street from the recreation center, and locked himself inside. Burton got out of the car
and started banging on the door. She was yelling obscenities and threats at Gaston.
Gaston remained inside, and Burton eventually left.
{¶ 5} After hearing the evidence, the trial court found Gaston guilty of
misdemeanor assault and sentenced him to serve 180 days in jail, with 176 days
suspended and credit for four days served. The court also imposed a $1,000 fine, which
was suspended. It is from this conviction that Gaston timely appeals, raising two
assignments of error.
{¶ 6} Gaston’s first assignment of error provides as follows: “The court erred in
not considering the affirmative defense of self-defense in violation of United States
Constitution Amendments V and XIV and Ohio Constitution Article I, Sections 1, 10, and
16.” Gaston’s first assignment of error essentially challenges the weight of the evidence
establishing his affirmative defense, an issue raised in his second assignment of error,
which provides as follows: “Defendant’s conviction for assault was against the manifest
weight of evidence.” In his second assignment of error, Gaston argues that he
sufficiently proved his actions were done in self-defense. We find both assignments of
error to be without merit. {¶ 7} In reviewing a claim challenging the manifest weight of the evidence, the
question to be answered is whether “there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt.
In conducting this review, we must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” (Internal citations and quotations
omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶ 8} Gaston was convicted of a misdemeanor assault in violation of Cleveland
Codified Ordinances 621.03, which provides that no “person shall knowingly cause or
attempt to cause physical harm to another * * * [or n]o person shall recklessly cause
serious physical harm to another.” Gaston did not dispute that a physical altercation took
place. Gaston steadfastly maintained that his actions were in self-defense. The only
issue, therefore, was whether the physical harm was justified under the circumstances.
{¶ 9} To establish self-defense at trial, the defendant must show the following:
(1) he was not at fault in creating the situation giving rise to the disturbance; (2) he had a
bona fide belief that he was in imminent danger of death or great bodily harm; (3) that his
only means of escape from such danger was in the use of such force; and (4) he must not
have violated any duty to retreat or avoid the danger. State v. Melchior (1978), 56 Ohio
St.2d 15, 20-21, 381 N.E.2d 195. The defendant fails to establish that he acted in self-defense if he fails to prove any one of these elements by a preponderance of the
evidence. See State v. Jackson (1986), 22 Ohio St.3d 281, 284, 490 N.E.2d 893.
{¶ 10} We first note that the court heard testimony and closing arguments in which
Gaston raised the issue of self-defense. Nothing in the record indicates that the court
failed to consider the theory, and we must presume that in a bench trial, unless the record
affirmatively appears to the contrary, the trial court considered the appropriate defenses.
State v. Perez, Cuyahoga App. No. 91227, 2009-Ohio-959, ¶ 61. More important, we
find that Gaston’s version of events are insufficient to even establish a self-defense claim.
Gaston characterizes his actions as restraints to prevent Burton from committing acts of
violence against him. We disagree with this characterization. Gaston overlooks the
fact, according to his testimony, that he escalated the verbal argument into a physical one
when he interfered with Burton’s control of her moving car.
{¶ 11} Even if we believe Gaston and limit our consideration to his version of the
incident, it is undisputed that he instigated the physical aspect of the altercation. We
acknowledge that Gaston does not characterize his actions as such, but the facts
nonetheless establish that he was the first to use physical force. He cannot then claim his
subsequent acts of grabbing Burton’s hair and “holding her down” were done in
self-defense.
{¶ 12} On the third pass around the parking lot, Gaston grabbed for the steering
wheel while the car was still in motion. According to Gaston’s trial testimony, only when he attempted to hijack the car did Burton strike him. He thought she would
continue to hit him. Gaston did not testify to being in danger prior to that point.
{¶ 13} Gaston elevated the nature of the altercation into one that became physical
by interfering with Burton’s exclusive right to control her car. Up to that point, she
merely restrained Gaston inside the car by driving laps around the parking lot. There
was no threat of harm from the restraint, and the dispute remained verbal. Common
sense dictates that interfering with a driver’s exclusive control of a moving vehicle is
inherently dangerous to all occupants, so much so that such interference is in and of itself
a crime. R.C. 4511.70(B). Gaston started the chain of events that led to Burton’s
striking him. The facts of this case do not support Gaston’s theory of self-defense.
Moreover, the testimony that Burton chased Gaston and pounded on his uncle’s door
related to events that occurred after the assault already took place. Her subsequent
actions, even if believed, cannot be used to establish self-defense to an assault that
already occurred.
{¶ 14} In examining the entire record, weighing the evidence and all reasonable
inferences, and considering the credibility of the witnesses, we find that the trier of fact
did not clearly lose its way in finding Gaston guilty of misdemeanor assault. The record
reflects that substantial, credible evidence was presented whereby the trial court could
reasonably find that Gaston committed the assault and failed to prove that he acted in
self-defense, in light of the fact he instigated the physical aspect of the altercation. Consequently, Gaston’s conviction is not against the manifest weight of the evidence, and
both his assignments of error are overruled.
{¶ 15} The decision of the trial court is affirmed.
It is ordered that appellee recover from appellant 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 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.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and COLLEEN CONWAY COONEY, J., CONCUR