State v. Kimmell

Citation: 2011 Ohio 660Docket: 16-10-06

Court: Ohio Court of Appeals; February 13, 2011; Ohio; State Appellate Court

Original Court Document: View Document

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Alisha K. Kimmell appeals her conviction for domestic violence against her estranged husband, Nicholas G. Kimmell, asserting that the verdict was against the manifest weight of the evidence and that her self-defense claim was inadequately considered. Alisha and Nick, married since 1996 with three minor children, had experienced an unstable separation prior to the incident. Alisha had stayed with Nick from February 10 to February 12, 2010, to discuss reconciliation and attend their son's school program.

The altercation occurred on February 12, 2010, after the children left for school. Alisha became upset, suspecting Nick planned to take another woman to a concert. She confronted him repeatedly and blocked his efforts to leave the bathroom, leading to a physical confrontation. Both parties sustained minor injuries and subsequently filed domestic violence charges against each other.

During the May 4, 2010, bench trial, testimony revealed that Alisha, upset and unmedicated for depression, aggressively confronted Nick. Nick recounted Alisha forcibly grabbing him and biting him as he attempted to escape her hold. He admitted to using significant force to free himself, potentially causing injury to Alisha in the process. Following the incident, Nick reported seeing Alisha throw a crock pot at a television outside their home. The trial court ultimately upheld the domestic violence charge against Alisha under R.C. 2919.25(A). The appellate court affirmed the trial court's judgment.

Alisha testified that during an incident with Nick, she began crying due to his yelling and followed him into the bathroom, where an altercation occurred. She claimed Nick pushed her into the doorknob, attempted to kick her feet to shut the door, and later grabbed her neck, slamming her head into a cabinet. In response, she bit his leg and grabbed his penis to escape his hold. Alisha admitted to pestering Nick about who he was taking to a concert and acknowledged feeling upset that he wouldn’t choose her over his girlfriend. 

Lt. Frey provided evidence, including photographs showing injuries on both Alisha and Nick, with Alisha having an abrasion and a lump on her head and Nick displaying a bite mark. The trial court found Alisha guilty of domestic violence, concluding that she initiated the altercation through her aggressive behavior and that she had opportunities to walk away. The court ruled against her self-defense claim, noting her actions were not legally justified. Alisha was sentenced to 180 days in jail, with most of the sentence suspended on the condition of probation.

Alisha is appealing the trial court's decision on two grounds: first, that the verdict was against the manifest weight of the evidence, asserting she was the victim of Nick's domestic violence, and second, that the court improperly considered her self-defense claim. She argues the evidence did not support her conviction and that the trial court lost its way in its judgment, seeking a reversal and a new trial.

An appellate court reviewing a conviction under the manifest-weight standard must evaluate the entire record, weigh all evidence and reasonable inferences, assess witness credibility, and determine if the fact-finder clearly erred, leading to a manifest miscarriage of justice warranting a new trial. A new trial is only justified in exceptional cases where evidence heavily contradicts the conviction. While the appellate court may act as a "thirteenth juror" and disagree with the fact-finder's assessment of conflicting testimony, it must respect the fact-finder's superior ability to judge credibility based on live observations rather than a written transcript.

In this case, the trial court convicted Alisha of domestic violence under R.C. 2919.25(A), which prohibits causing or attempting to cause physical harm to a family member. The court found that both Alisha and Nick testified to an incident where Alisha bit Nick and grabbed his penis, actions which Nick claimed were painful. The trial court deemed Nick's account more credible than Alisha's self-defense claim after considering their demeanors and the evidence, including photographs of the bite. The appellate review found no error in the trial court's decision-making process, concluding that Alisha's conviction did not violate the manifest weight of the evidence. Alisha’s arguments regarding self-defense were also dismissed, as the court determined that her use of force was not justified under the circumstances.

Self-defense serves as an affirmative defense, requiring the defendant to prove each element by a preponderance of the evidence. The criteria for self-defense involving non-deadly force include: (1) the defendant must not be at fault in instigating the situation, and (2) the defendant must have a bona fide belief—both objectively reasonable and subjectively honest—that they faced imminent bodily harm. A defendant utilizing non-deadly force is not required to fear death or severe injury, but the force must be reasonable under the circumstances. Unlike cases involving deadly force, there is no obligation to retreat before using non-deadly force. However, self-defense is invalidated if the force used is excessively disproportionate, indicating a motive of revenge or criminal intent. 

In the reviewed case, the trial court determined that Alisha initiated the conflict, as evidenced by her following Nick into the bathroom despite his attempts to avoid her. Alisha's actions, including clinging to Nick's leg, contributed to the altercation, leading the court to conclude she was at fault. Consequently, Alisha's claim of self-defense was rejected, and her second assignment of error was overruled. The trial court's judgment was affirmed, with a note that Alisha's argument regarding the verdict's weight was misplaced, as a verdict is only applicable in jury trials, while a bench trial results in a general finding. Additionally, the issuance of written findings of fact in this bench trial was noted as contrary to procedural rules.