[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
