State v. Vandergriff

2021 Ohio 3230

• Court: Ohio Court of Appeals
• Decided: September 17, 2021
• Docket: C-200282
• Status: Published

Opinion

[Cite as State v. Vandergriff, 2021-Ohio-3230.]

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

STATE OF OHIO, : APPEAL NO. C-200282 TRIAL NO. C-19CRB-26243 Plaintiff-Appellee, :

: O P I N I O N. VS. :

VICKY VANDERGRIFF, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 17, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Law Office of Arica L. Underwood LLC and Arica L. Underwood, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} What started as a routine shopping trip ended with an assault

conviction after a verbal confrontation between defendant-appellant Vicky

Vandergriff and another customer mushroomed into an all-out brawl. Ms.

Vandergriff now appeals, claiming a violation of her due process rights and

portraying her conviction as against the weight and sufficiency of the evidence.

Because Ms. Vandergriff invited the trial court’s decision that she now challenges on

appeal, we reject her due process challenge. We also conclude that her conviction

was supported by the weight and sufficiency of the evidence and affirm the trial

court’s judgment.

I.

{¶2} Ms. Vandergriff and her wife went to Dollar Tree with codefendant

Heaven Albright. But while paying for her merchandise, Ms. Vandergriff became

angry with two of the cashiers and began to verbally accost them, even threatening to

beat one of them with her crutch (she was recovering from a knee injury). Another

customer in a nearby check-out lane, John Neidich, took umbrage with Ms.

Vandergriff’s behavior and intervened by informing her that her actions weren’t

necessary. Instead of deescalating the situation, Mr. Neidich’s remark infuriated Ms.

Vandergriff, prompting her to retort that he had better shut his mouth or she would

attack him as well. A war of words ensued between the two, eventually escalating

into a physical melee as they tumbled out of the store.

{¶3} In Mr. Neidich’s telling, Ms. Vandergriff’s wife shoved him as he left

the store. And after he warned her to not touch him, she pushed him out the door as

Ms. Vandergriff struck him on the head with her crutch. Mr. Neidich testified that

2 OHIO FIRST DISTRICT COURT OF APPEALS

Ms. Vandergriff and her wife then engaged in a full-on assault, jumping onto him

and striking him with closed fists. Mr. Neidich and Ms. Vandergriff eventually got

tangled up on the ground where Ms. Vandergriff bit him under the arm. An onlooker

came up and handed Mr. Neidich some pepper spray, which he used to fend off Ms.

Vandergriff. Mr. Neidich eventually stood back up, but Ms. Vandergriff (while still

on the ground) grabbed ahold of his leg, keeping him from getting away. And at

some point during the frenzy, Ms. Vandergriff’s friend and codefendant, Ms.

Albright, came up from behind and joined the fray. Ms. Vandergriff and Ms. Albright

allegedly continued the assault by punching Mr. Neidich and tearing off his shirt,

stopping only when sheriff deputies arrived.

{¶4} Unsurprisingly, Ms. Vandergriff offers a different perspective on the

encounter, although she largely corroborates the general tenor of the verbal

altercation that precipitated the fight. In Ms. Vandergriff’s rendition, it was Mr.

Neidich who initiated the fight by first pushing her wife, then proceeding to punch

Ms. Vandergriff in the face after she tried to intervene. Thus, Ms. Vandergriff claims

that she acted in self-defense.

{¶5} In addition to Mr. Neidich’s and Ms. Vandergriff’s testimony, two

Hamilton County deputies testified. They explained that upon arriving at Dollar

Tree, Mr. Neidich looked like he had survived a beating: they saw his shirt in tatters,

a bite mark that was bleeding, and a series of scratches on his neck and face. All

three women were charged with misdemeanor assault under R.C. 2903.13.

{¶6} The case proceeded to a bench trial with Ms. Vandergriff and Ms.

Albright being tried together a codefendants. Ultimately, the trial court believed Mr.

Neidich’s version of events, finding Ms. Vandergriff guilty (but not Ms. Albright) and

3 OHIO FIRST DISTRICT COURT OF APPEALS

sentencing her to 180 days with 179 days suspended. Ms. Vandergriff now appeals,

bringing three assignments of error, arguing that her due process rights were

violated and that her conviction was against the weight and sufficiency of the

evidence.

II.

{¶7} In her first assignment of error, Ms. Vandergriff insists that her due

process rights were violated because the trial court did not require the state or Dollar

Tree to produce any surveillance video. Although Ms. Vandergriff requested Dollar

Tree to turn over any video, it apparently never responded. At trial, defense counsel

asked one of the deputies about surveillance footage, and the deputy responded that

he thought video existed but that he had not viewed it. This statement by the deputy

caught the trial court by surprise, and during recess, the court explored the issue

with counsel in chambers. Once the trial resumed, the court addressed the issue on

the record.

COURT: But we did have an issue come up * * * in regard to a video

that may or may not exist. It’s my understanding that the state does

not have the video, is that correct?

PROSECUTOR: Correct.

COURT: There has, however, been at least a suggestion that Dollar

Tree may in fact still have the ability to produce this video. * * *

[H]owever, I have indicated to you [defense counsel] that if either one

of you wanted a continuance in progress before we got to your portion

of the case * * * I would give a continuance in progress * * * .

4 OHIO FIRST DISTRICT COURT OF APPEALS

MS. VANDERGRIFF’S ATTORNEY: On behalf of Ms. Vandergriff, I

have spoken with Ms. Vandergriff, advised her of what was going on,

and we would like to continue with the trial.

****

CO-DEFENDANT ALBRIGHT’S ATTGORNEY: Your honor, we would

like to proceed with trial as well.

COURT: For the defendants, you understand what I was giving was the

opportunity if in fact the video has not been located yet, however in

abundance of caution, I was willing to allow your attorneys to have a

continuance to see if they could obtain it. Everyone is electing not to

do that, is that correct?

MS. VANDERGRIFF: Yes, ma’am * * * .

{¶8} Although the trial court gave Ms. Vandergriff two options—proceeding

with trial or taking a pause to try to track down the footage—she now argues it erred

by deferring to her choice. Even if we imagine that the trial court somehow went

astray, Ms. Vandergriff cannot now object because “[t]he doctrine of invited error

specifies that a litigant may not ‘take advantage of an error which he himself invited

or induced.’ ” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶

279, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury

Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. To be

sure, “invited error must be more than mere ‘acquiescence in the trial judge's

erroneous conclusion * * * .’ ” State v. Campbell, 90 Ohio St.3d 320, 324, 738

N.E.2d 1178 (2000), quoting Carrothers v. Hunter, 23 Ohio St.2d 99, 103, 262

5 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 867 (1970). But the “[Ohio Supreme Court] has found invited error when a

party has asked the court to take some action later claimed to be erroneous, or

affirmatively consented to a procedure the trial judge proposed.” Campbell at 324,

citing Hal Artz at 28, fn. 16; State ex rel. Lowery v. Cleveland, 67 Ohio St.3d 126,

128, 616 N.E.2d 233 (1993); State v. Wigglesworth, 18 Ohio St.2d 171, 180-181, 248

N.E.2d 607 (1969). Here, Ms. Vandergriff explicitly rejected the trial court’s offer to

suspend the trial so that she could investigate whether any surveillance video existed.

She cannot now turn the trial court’s benevolence into a sword. We accordingly

overrule Ms. Vandergriff’s first assignment of error.

III.

{¶9} In her second and third assignments of error, Ms. Vandergriff

characterizes her conviction as contrary to the weight and sufficiency of the evidence.

In reviewing Ms. Vandergriff’s manifest-weight challenge, we sit as a “thirteenth

juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In other

words, we review the evidence, the credibility of witnesses, and the entire record. Id.

But we will only reverse if the trial court “ ‘clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). Here, Ms. Vandergriff does nothing to explain how the trial court lost its

way in finding Mr. Neidich more believable. Furthermore, “it is well settled law that

matters as to the credibility of witnesses are for the trier of fact to resolve.” State v.

Ham, 1st Dist. Hamilton No. C-170043, 2017-Ohio-9189, ¶ 21. “ ‘When conflicting

evidence is presented at trial, a conviction is not against the manifest weight of the

evidence simply because the trier of fact believed the prosecution testimony.’ ” State

6 OHIO FIRST DISTRICT COURT OF APPEALS

v. Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29, quoting

State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.

Thus, we find Ms. Vandergriff’s manifest weight challenge unpersuasive and overrule

her second assignment of error.

{¶10} As to Ms. Vandergriff’s sufficiency challenge, she narrowly argues that

the state failed to meet its burden of proof as required in Ohio’s self-defense statute.

See R.C. 2901.05. If a defendant presents evidence that “tends to support” a self-

defense theory, “the prosecution must prove beyond a reasonable doubt that the

accused person did not use the force in self-defense [or] defense of another * * * .”

See R.C. 2901.05(B)(1). Thus, “ ‘the relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could

have found * * * beyond a reasonable doubt’ ” that Ms. Vandergriff was not acting in

self-defense. See State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d

1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. Whether the evidence sufficed to support Ms.

Vandergriff’s conviction presents a legal question that we review de novo. State v.

Ellison, 1st Dist. No. C-070875, 178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d

228, ¶ 9 (1st Dist.). Here, we easily conclude that the state met its burden of

presenting sufficient evidence to sustain the conviction. Viewing Mr. Neidich’s and

the deputies’ testimony in a light most favorable to the state—as we must—a rational

factfinder could find that Ms. Vandergriff initiated the assault. Mr. Neidich

specifically testified that Ms. Vandergriff struck him with her crutch without any

physical provocation. And the deputies testified that it was Mr. Neidich who was

assaulted, not Ms. Vandergriff. On appeal, Ms. Vandergriff does not address this

7 OHIO FIRST DISTRICT COURT OF APPEALS

evidence and instead summarily concludes that sufficient evidence did not exist. On

the record at hand, we find Ms. Vandergriff’s sufficiency challenge not well taken and

overrule her third assignment of error.

* * *

{¶11} In light of the foregoing analysis, we overrule Ms. Vandergriff’s three

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

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

Please note:

The court has recorded its entry on the date of the release of this opinion