State v. French

2024 Ohio 1256

• Court: Ohio Court of Appeals
• Decided: April 3, 2024
• Docket: C-230275
• Status: Published

Opinion

[Cite as State v. French, 2024-Ohio-1256.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230275 TRIAL NO. B-2202579 Plaintiff-Appellee, : O P I N I O N. vs. :

KENDRA FRENCH, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 3, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Brian A. Smith Law Firm, LLC, and Brian A. Smith, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Defendant-appellant Kendra French appeals from the trial court’s

judgment convicting her, after a bench trial, of felonious assault. French argues that

her conviction was against the manifest weight of the evidence, contending that the

evidence demonstrated that she had acted in self-defense. She further argues that the

trial court’s exclusion of a witness’s prior criminal history was an abuse of discretion

and a violation of her rights to due process, a fair trial, and to confront and cross-

examine witnesses under the United States and Ohio Constitutions.

{¶2} Because French’s belief of imminent bodily harm was not objectively

reasonable, the state disproved self-defense beyond a reasonable doubt, and her

conviction was therefore not against the manifest weight of the evidence. And because

French’s counsel did not actually impeach the witness regarding his prior criminal

history, the trial court properly excluded this testimony. Accordingly, we overrule

French’s assignments of error and affirm the judgment of the trial court.

Factual and Procedural Background

{¶3} French was charged with two counts of felonious assault in violation of

R.C. 2903.3(A)(1) and (2) in connection with a May 28, 2022 shooting that resulted in

injuries to French’s neighbor, F.H. The case proceeded to a bench trial on March 14,

2023.

{¶4} At the bench trial, F.H. testified that she lived at an apartment complex

on Losantiville Avenue and that French lived in the unit below her. The Losantiville

apartment complex had four units in total, with two units on each floor. There was an

orange-tiled landing at the entrance, with a set of stairs that led up to the first set of

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apartment units on the right side and a door to a set of stairs leading down to the

basement and garage on the left side.

{¶5} F.H. testified that she and French had a contentious relationship and

that she frequently asked French to keep the noise down to no avail. On the evening

of May 28, 2022, F.H. and her boyfriend, Anthony Jackson, pulled into the driveway

of the apartment complex after getting groceries and they saw that French and her

friend, Warren Bratcher, were seated on a ledge near the garage. According to F.H.,

Jackson and Bratcher began arguing first, and then French squared up to fight F.H.

At that point, all four parties engaged in a physical altercation.

{¶6} After the fight broke up, F.H. and Jackson dropped off their groceries to

F.H.’s apartment. F.H. testified that when she and Jackson went back downstairs to

get the rest of the groceries, French shot her in the face as F.H. opened the door that

led to the basement and garage.

{¶7} F.H. testified that she was transported to the hospital after Jackson

called 911, where she was diagnosed with maxillary and mandible fractures. She also

testified that she did not initiate the first altercation with French and that she did not

have any weapons that night. On cross-examination, she admitted that she provided

a statement at the hospital that she heard a knock on her door and was shot when she

answered, which contradicted her testimony at trial.

{¶8} Jackson also testified at trial. He testified that when he and F.H. pulled

into the driveway, French said something that led to the first physical altercation

between French and F.H. According to Jackson, he tried to break them up, but

Bratcher hit him, and he fell to the ground. Jackson also testified that F.H. was shot

at the bottom of the basement stairs after he had gone back downstairs with her to get

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more groceries. But in an interview with the police, Jackson stated they had barely

gotten the key in the front door when F.H. was shot, which seemingly implied they

were upstairs by F.H.’s apartment. In his testimony, Jackson also denied having

weapons that day, either on his person or in F.H.’s apartment.

{¶9} On cross-examination, French’s counsel tried to elicit testimony from

Jackson regarding a prior conviction for domestic violence. Though Jackson was

charged with domestic violence, he clarified that he was not sentenced to prison and

that he was not convicted of a crime punishable by more than a year. The state

objected to this testimony, and the trial court struck Jackson’s answer, because

Jackson’s conviction was not a felony or a crime of dishonesty in the last ten years.

Following the state’s objection, there were no further questions on the issue by

French’s counsel.

{¶10} Detective Jacquelyn Metz also testified at trial. Metz indicated that she

interviewed French, French’s brother, and Jackson at the crime scene, which she also

canvassed. On the orange-tiled landing, she found a shell casing and a human tooth,

and upstairs she found human blood and teeth. Though not qualified as an expert

witness, she testified that, based on her experience, she believed the shell casing came

from a handgun.

{¶11} Detective Charles Zopfi was an additional witness for the state at trial.

Zopfi testified that he interviewed F.H. at the hospital and that she identified French

as the person who had shot her. Per Zopfi’s testimony, he also interviewed French in

the early hours of the morning on May 29, 2022. As Zopfi told the court, according to

French in this interview, she shot F.H. when F.H. lunged down the stairs at French.

Zopfi relayed that French did not recall seeing a weapon on F.H., but that French was

4 OHIO FIRST DISTRICT COURT OF APPEALS

carrying her gun with her throughout the altercation. According to Zopfi, French also

told him that she had a history of disagreements with F.H., that she had a license to

carry a concealed weapon, and that she believed Jackson had a gun on the night of the

shooting.

{¶12} When the trial court took a recess during Zopfi’s testimony, French’s

counsel observed Zopfi and Officer Christian Russ discussing the case, ostensibly in

violation of a court order separating the witnesses. Zopfi averred that it was a lapse in

judgment and no relevant information was exchanged. At the request of defense

counsel, the trial court admonished the witnesses not to speak to each other.

{¶13} On cross-examination, Zopfi denied that the lack of physical evidence in

the basement was significant. Zopfi clarified that, according to F.H., she was coming

up from the basement and going onto the orange-tiled landing when she was shot.

Based on this, Zopfi contended it would not make sense to find blood stains in the

basement. Zopfi also acknowledged that he interviewed F.H. again two days after the

incident without recording the interview, turning on his body-worn camera, or taking

notes.

{¶14} Russ testified at trial that on the evening of the shooting, he found

French sitting on the front curb of the apartment complex with a bloody nose.

According to Russ, French said, “I am the one that shot her.” Russ testified that he

and another officer retrieved French’s gun, which was empty. They then placed French

in custody.

{¶15} At the close of the state’s case, French moved for an acquittal under

Crim.R. 29. The trial court denied this motion.

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{¶16} French testified at trial. She testified that she and F.H. often had

disagreements. French further testified that she frequently heard F.H. and Jackson

getting into verbal and physical altercations. She believed that Jackson had a gun in

F.H.’s apartment, although she had never seen it.

{¶17} According to French, it was Jackson who initiated the first altercation

on the night of shooting. She maintained that F.H. made physical contact with her

first by pulling her hair. French contended that Bratcher broke up the first fight.

French further testified that her gun was in her waistband the whole time and that she

did not pull out her gun during the first altercation because she did not feel threatened

at that point.

{¶18} French indicated that she and Bratcher waited outside for a few

moments after the first altercation. French testified that when they went inside, F.H.

lunged at her from the top of the stairs. French testified that because she thought that

F.H. may have gotten a gun from Jackson, she shot F.H. as she lunged at her.

According to French, this caused F.H. to fall backwards. French indicated that F.H.

then bounced up and ran to her apartment. French further testified that she intended

to turn herself into the police to show that she was not guilty and had acted in self-

defense.

{¶19} Bratcher also testified at trial. He testified that Jackson attacked him

first. He heard a shot fired, but did not see anything. He left the scene after hearing

the shot. He also recalled telling French she should not have done what she did while

she was being arrested.

{¶20} The following exhibits were moved into evidence at trial: surveillance

videos submitted by an anonymous neighbor to the police, a recording of Jackson’s

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interview with Metz, and the body-worn camera footage of an unidentified officer on

the scene that evening.

{¶21} These exhibits demonstrate a number of key facts. For example, though

one of the surveillance videos was mostly obstructed by shrubbery and fencing, the

other surveillance video showed two pairs of individuals fighting by the garage, with

one individual falling, as Jackson had testified, and another individual having her hair

pulled, as French had testified. In addition, in Jackson’s interview with Metz, Jackson

stated that French was trying to get her gun from the car following the first altercation,

but that Bratcher stopped her. He also indicated that Bratcher and French started the

fight. In the body-worn camera footage, blood splatters were visible near F.H.’s unit,

but not in the basement. Additionally, an officer is seen commenting in the body-worn

camera footage that a tooth and casing were found on the orange-tiled landing.

{¶22} Following the presentation of the defense case, French renewed her

Crim.R. 29 motion, which the trial court denied again. The trial court found that F.H.

was the initial aggressor in the first altercation, that French had time to get her gun

from her car following the first altercation, that French was standing on the orange-

tiled landing when the shooting occurred, and that F.H. was standing at the top of the

steps above the orange-tiled landing. The trial court found that French had an honest

belief that she was in danger, but that her perception of the threat from F.H. lunging

at her without a visible weapon was not reasonable. Further, the trial court found that

French’s use of force was disproportionate to the danger she perceived.

{¶23} The trial court ultimately found French guilty as charged and sentenced

her to five-to-six years of incarceration. She now appeals.

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Self-Defense

{¶24} In her first assignment of error, French argues that her conviction was

against the manifest weight of the evidence, because, she contends, the evidence

showed she acted in self-defense.

{¶25} “[I]n evaluating a manifest weight challenge involving self-defense, we

must review the entire record, consider the credibility of witnesses, and determine

whether the trier of fact clearly lost its way and created a manifest miscarriage of

justice with respect to its finding that the state disproved at least one of the elements

of self-defense beyond a reasonable doubt.” State v. Gibson, 1st Dist. Hamilton No. C-

220283, 2023-Ohio-1640, ¶ 12. To disprove self-defense, the state must establish

“beyond a reasonable doubt that the defendant: (1) was at fault in creating the

situation giving rise to the affray; (2) did not have reasonable grounds to believe or an

honest belief that he or she was in imminent danger of bodily harm; or (3) violated a

duty to retreat or avoid danger.” Id. at ¶ 11.

{¶26} “The test for a bona fide belief of imminent bodily harm is both objective

and subjective: whether the defendant’s belief is objectively reasonable and whether

the defendant subjectively had an honest belief of imminent bodily harm.” State v.

Warth, 1st Dist. Hamilton No. C-220477, 2023-Ohio-3641, ¶ 29.

{¶27} Here, the trial court found that French subjectively had an honest belief

of imminent bodily harm. In reaching this conclusion, the trial court accepted

French’s version of events. It agreed with French that F.H. was the initial aggressor

and that F.H. lunged at her from the top of the landing. But it did not find that French’s

honest belief was objectively reasonable.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶28} French argues that it was objectively reasonable, because it was

plausible that F.H. had a gun in light of Jackson’s prior criminal history and that F.H.

could have reached for that gun when she lunged at French. She further argues that

Jackson and F.H. were not credible, that it was illogical that there were no bloodstains

in the basement, and that her gun was on her person the entire evening. She also takes

issue with Zopfi and Russ’s discussion of the case in violation of the trial court order

requiring the separation of witnesses.

{¶29} The trial court found that French’s use of a gun was disproportionate to

any apparent danger perceived from F.H. lunging down the stairs. F.H. and Jackson

denied having weapons that day. Though French challenges their credibility, “it is well

settled law that matters as to the credibility of witnesses are for the trier of fact to

resolve.” State v. Johnson, 1st Dist. Hamilton No. C-170354, 2019-Ohio-3877, ¶ 52.

“Because the trier of fact sees and hears the witnesses at trial, we must defer to the

factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses.” Id. Therefore, we defer to the trial court’s finding that F.H. was not armed

and that French’s use of a gun was disproportionate.

{¶30} French’s contention that the lack of physical evidence in the basement

disproves F.H.’s version of events is rebutted by Zopfi’s evidence. Zopfi clarified that

F.H. did not mean she was in the basement when she was shot. Rather, F.H. was by

the orange-tiled landing, and it would therefore make sense that physical evidence was

found in the landing and not in the basement.

{¶31} French also fails to explain how the conversation between Russ and

Zopfi affected the outcome of her case. Although French argues that this impacted

their credibility, the court credited her version of events, not theirs. Additionally, the

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trial court admonished Russ and Zopfi to stop talking to each other and confirmed that

nothing of consequence was discussed.

{¶32} Thus, the trial court did not lose its way in finding that the state

disproved that French had reasonable grounds to believe she was in imminent danger

of bodily harm. We therefore overrule French’s first assignment of error.

Evid.R. 609

{¶33} In her second assignment of error, French argues that the trial court

abused its discretion in excluding evidence of Jackson’s prior criminal history.

{¶34} “A trial court’s decision to admit or exclude evidence is reviewed for an

abuse of discretion.” State v. Terry, 1st Dist. Hamilton No. C-230049, 2023-Ohio-

3131, ¶ 6. Evid.R. 609 governs impeachment of a witness’s credibility through the

admission of evidence of a prior criminal conviction, which is either a crime of

dishonesty or a crime that is punishable by death or more than one year of

imprisonment. Evid.R. 609(A). The conviction may be proven only by the witness’s

testimony or by public record shown to the witness during his or her examination.

Evid.R. 609(F).

{¶35} Here, however, French’s counsel failed to actually impeach Jackson

with a prior conviction. The following exchange occurred during Jackson’s cross-

examination:

FRENCH’S COUNSEL: Have you been convicted of a crime punishable

by more than one year in prison in the last ten years?

JACKSON: Is you talking about like domestic violence or something like

that? Yeah.

FRENCH’S COUNSEL: Yes.

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JACKSON: But I haven’t been to prison, no.

FRENCH’S COUNSEL: Okay. What I’m asking is have you been

convicted of something punishable by more than one year?

JACKSON: No.

FRENCH’S COUNSEL: And even if you didn’t get a year, potentially

punishable by more than a year in prison?

***

STATE: Objection, Your Honor, to the relevance of any sort of prior

domestic violence between [F.H.] and Anthony Jackson.

TRIAL COURT: Right. The conviction was not for a felony or a crime of

dishonesty in the last ten years. It’s inadmissible, so I’ll strike the

answer.

FRENCH’S COUNSEL: Fair enough.

{¶36} Considering Jackson’s responses to French’s counsel’s questions,

Jackson never indicated that he had in fact been convicted of the requisite crime as

required by Evid.R. 609(F). While Jackson indicated he had been convicted of

domestic violence, he denied having gone to prison at all for this crime and further

denied having any criminal conviction whatsoever for which he faced more than a year

in prison. Following Jackson’s answers, French’s counsel did not use a public record

of the conviction to impeach Jackson as Evid.R. 609(F) contemplates. Instead, when

the state objected, and the trial court struck Jackson’s answer, French’s counsel agreed

to move on. Thus, because Jackson was never properly impeached under either of the

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methods for proving a prior conviction under Evid.R. 609(F), the trial court did not

abuse its discretion in excluding evidence of Jackson’s criminal history.

{¶37} Accordingly, we overrule French’s second assignment of error.

Conclusion

{¶38} For the reasons set forth above, the trial court’s finding that French’s

honest belief of imminent bodily harm was objectively unreasonable was not against

the manifest weight of the evidence. Further, because French’s counsel did not

actually impeach Jackson under Evid.R. 609, the trial court did not abuse its

discretion in excluding evidence of Jackson’s prior conviction. Accordingly, French’s

assignments of error are overruled, and the trial court’s judgment is affirmed.

Judgment affirmed.

ZAYAS, P.J., and WINKLER, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.