[Cite as State v. Gibson, 2015-Ohio-3616.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-14-1063

        Appellee                                 Trial Court No. CR0201303230

v.

Meika Gibson                                     DECISION AND JUDGMENT

        Appellant                                Decided: September 4, 2015

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Michael J. Loisel, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal brought by appellant, Meika Gibson, from the judgment of

the Lucas County Court of Common Pleas which found her guilty of a violation of R.C.

2903.11(A), felonious assault, a felony of the second degree. Appellant was then
sentenced to serve a sentence of three years in prison with a mandatory three years of

postrelease control.

       {¶ 2} Appointed counsel has filed a brief and requested leave to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967). Under Anders, if, after a conscientious examination of the case, counsel

concludes the appeal to be wholly frivolous, she should so advise the court and request

permission to withdraw. Id. at 744. This request must be accompanied by a brief

identifying anything in the record that could arguably support the appeal. Id. In addition,

counsel must provide appellant with a copy of the brief and request to withdraw, and

allow appellant sufficient time to raise any additional matters. Id. Once these

requirements are satisfied, the appellate court is required to conduct an independent

examination of the proceedings below to determine if the appeal is indeed frivolous. Id.

If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the

appeal without violating any constitutional requirements. Id.

       {¶ 3} Appellee, state of Ohio, did file a responsive brief in which it agreed that

there are no meritorious arguments that would support this appeal and did not object to

counsel’s motion to withdraw.

       {¶ 4} In this case, appellant’s appointed counsel has satisfied the requirements set

forth in Anders, supra. This court further notes that appellant did not file a pro se brief in

this matter.




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       {¶ 5} Accordingly, this court shall proceed with an examination of the potential

assignments of error set forth by counsel. We have reviewed the entire record from

below to determine if this appeal lacks merit and is, therefore, wholly frivolous.

       {¶ 6} Counsel refers to two possible, but ultimately untenable, issues: (1) the

appellant’s conviction fell against the sufficiency and/or manifest weight of the evidence

concerning the affirmative defense under R.C. 2901.05, and (2) the trial court abused its

discretion in refusing to instruct the jury concerning the lack of duty to retreat in one’s

own residence under R.C. 2901.09

       {¶ 7} Under Ohio law, self-defense is an affirmative defense which a defendant

must establish by a preponderance of the evidence. R.C. 2901.05(A); State v. Martin, 21

Ohio St.3d 91, 94, 488 N.E.2d 166 (1986). To prove self-defense, a defendant must

prove (1) that she was not at fault in creating the situation giving rise to the use of deadly

force, (2) that she had reasonable grounds to believe and an honest belief that she was in

immediate danger of death or great bodily harm and that her only means of escape from

such danger was by the use of deadly force, and (3) that she did not violate any duty to

escape to avoid the danger. State v. Cooper, 170 Ohio App.3d 418, 426, 2007-Ohio-

1186, 867 N.E.2d 493, ¶ 18 (4th Dist.), citing State v. Williford, 49 Ohio St.3d 247, 249,

551 N.E.2d 1279 (1990).

       {¶ 8} In the case before the court, the prosecution presented the testimony of the

police officers who responded to a 911 call made by first medical responders. Appellant

admitted to one of the officers that she had stabbed the victim and told him where the




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knife was located. Appellant further told one of the officers that she had felt threatened

by the victim and then stabbed him. The officer observed the victim while he was being

treated by emergency personnel but was unable to communicate with him due to his

intoxicated condition and the fact that he was suffering from a stab wound at the time.

Appellant also said she had been punched by the victim.

       {¶ 9} The victim was unable to be located and provided no information and did

not appear at trial. Nevertheless, appellant did admit to stabbing the victim with a knife.

To establish a defense of self-defense the burden is on the appellant to prove: (1) no fault

in creating the situation; (2) that she had reasonable grounds to believe and an honest

belief that she was in immediate danger of death or great bodily harm; (3) that her only

means of escape from such danger was by the use of deadly force; and (4) that she did not

violate any duty to escape to avoid the danger. Ultimately, this is a credibility question

that must be determined by the jury.

       {¶ 10} “Sufficiency of the evidence” is a legal standard which is applied to

determine whether the evidence is legally sufficient to support a jury verdict as a matter

of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684

N.E.2d 668 (1997). It requires the court to determine whether the state has presented

enough evidence on each element of the crime to allow the case to go to the jury. Id.

There was clearly sufficient evidence presented for the jury to make a determination,




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based upon a credibility assessment, as to whether appellant had established a self-

defense under R.C. 2901.05(A).

       {¶ 11} A manifest weight challenge questions whether the state has met its burden

of persuasion. State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-Ohio-1394, citing

Thompkins at 387. In making this determination, the court of appeals sits as a “thirteenth

juror” and, after “reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether, in resolving

conflicts in the evidence, 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.”

Thompkins, supra, at 386.

       {¶ 12} This court has reviewed the applicable law as well as the trial court’s

record, including the oral testimony of the trial. Upon due consideration, we find that the

record contains sufficient evidence to support appellant’s conviction for a violation of

R.C. 2903.11(A), felonious assault. In addition, we find, after reviewing the entire record

and weighing the evidence and all reasonable inferences, that the trier of fact did not lose

its way in reaching its verdict.

       {¶ 13} Therefore, this potential assignment of error is without merit.

       {¶ 14} The second potential assignment of error involves a consideration of the

“Castle Doctrine” as set forth in R.C. 2901.09. That section states in pertinent part:

              (B) For purposes of any section of the Revised Code that sets forth a

       criminal offense, a person who lawfully is in that person’s residence has no




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       duty to retreat before using force in self-defense, defense of another, or

       defense of that person’s residence, and a person who lawfully is an

       occupant of that person’s vehicle or who lawfully is an occupant in a

       vehicle owned by an immediate family member of the person has no duty

       to retreat before using force in self-defense or defense of another.

       {¶ 15} However, it is undisputed that both appellant and the victim were residents

of the dwelling where the stabbing took place.

       {¶ 16} Counsel aptly points out that the Castle Doctrine as set out in the Ohio

Revised Code has a specific exemption set forth in R.C. 2901.05(B)(2)(a) which states:

              (2)(a) The presumption set forth in division (B)(1) of this section

       does not apply if the person against whom the defensive force is used has a

       right to be in, or is a lawful resident of, the residence or vehicle.

       {¶ 17} Therefore, we cannot find that the trial court abused its discretion in

denying appellant’s requested jury instruction to apply the Castle Doctrine.

                                         Conclusion

       {¶ 18} We have accordingly conducted an independent examination of the record

pursuant to Anders v. California. We have examined the various filings and the written

transcript of the trial and have found no error prejudicial to appellant’s rights in the

proceedings in the trial court and have further found no non-frivolous issues for review.

The motion of counsel for appellant requesting to withdraw as counsel is granted, and

this appeal is deemed wholly frivolous.




6.
       {¶ 19} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. The clerk is

ordered to serve all parties with notice of this decision.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
Stephen A. Yarbrough, P.J.                                   JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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