[Cite as Cleveland v. Borden, 2017-Ohio-9016.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105339




                                CITY OF CLEVELAND
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   CORONA BORDEN
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2016 CRB 007146

        BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: December 14, 2017
ATTORNEYS FOR APPELLANT

Carmen P. Naso
Milton A. Kramer Law Clinic
Case Western Reserve University
11075 East Blvd.
Cleveland, Ohio 44106

Scott Bobbit
Marcus Mazurowski
Kristi Winner
Certified Legal Interns
Milton A. Kramer Law Clinic
Case Western Reserve University
11075 East Blvd.
Cleveland, Ohio 44106


ATTORNEYS FOR APPELLEE

Barbara Langhenry
City of Cleveland Law Director
By: Kimberly G. Barnett-Mills
Chief Assistant Prosecutor
Aric Kinast
Assistant City Prosecutor
1200 Ontario Street
Justice Center, 8th Floor
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Corona Borden appeals her convictions for assault and

aggravated menacing in Cleveland Municipal Court. We affirm.

       Factual and Procedural Background

       {¶2} Borden was charged with assault and aggravated menacing stemming from a

March 21, 2016 incident at the Laronde Apartments in Cleveland, Ohio.             The case

proceeded to a bench trial where the following facts were adduced.

       {¶3} Shirley Pierre testified that she did not know Borden. On that day, she

encountered Borden in the vestibule of the Laronde Apartments.         The building has a

security door that requires visitors to be buzzed in by a resident in order to gain entry.

When Pierre opened the front door to check her mail in the vestibule, Borden moved past

her and entered the lobby of the building. Pierre asked Borden not to enter the building

because it was against the building policy and she would not have allowed Borden

entry due to the fact that she did not know her.   Borden refused and placed a bag and a

suitcase near the front desk in the lobby.

       {¶4} Richard Pollard, a 72-year old resident at the Laronde Apartments, was

present in the lobby at the request of the building manager in order to ensure access to the

building for maintenance workers.     Pollard had experience working at the front desk of

the building and was familiar with the procedure for visitors to gain admission to the

building.   Pollard was alerted to a heated argument between Pierre and Borden, who was

unfamiliar to him. Pollard intervened in the argument and Borden told him she was a
home health aide for a resident in the building and that she was trying to reach her

daughter on the second floor. Pollard informed Borden that she needed to sign in at the

front desk and asked her name.     Borden refused to provide her name and began to direct

profanity at Pollard and Pierre. In addition to the profanity Pierre testified that Borden

stated, “I’m tired of you old people trying to tell us what to do. I do what I want.”

       {¶5} In response to Borden’s profanity Pollard testified that he informed Borden

that instead of calling the police he was going to move Borden’s bags to the vestibule

where she could continue to attempt to contact whoever she was trying to reach.         Pollard

stated, “I’m going to help you move your groceries out here because this profanity is too

much.”    Pollard than began to pull Borden’s luggage to the vestibule.                 Borden

responded by pushing Pollard and he fell over the arm of a nearby couch, landing in the

middle of the couch.     The encounter was captured on the building’s video surveillance

system and offered as evidence at trial.

       {¶6} Pollard testified that he got off the couch and called the Cuyahoga

Metropolitan Housing Authority police.         Pierre testified that after Borden pushed

Pollard, Borden began making threats saying, “I’m going to shoot both of you. I have a

gun. I have a permit.”   The security video reflects that the various parties moved in and

out of the lobby while awaiting the arrival of the police. Pierre testified that Borden

kept up a steady conversation about her gun and the fact that her husband was a police

officer. Pierre testified that she did not know if Borden had a gun on her person but was

fearful of her safety because of Borden’s threats and believed that Borden could come
back and harm her.       She testified that she remained in the lobby awaiting the police

despite her fear because she felt she and Pollard were in the situation together.

       {¶7} CMHA Police Officer Rhett Lariccia responded to the Laronde Apartments

and separated Borden from Pollard.     Lariccia testified that Borden was irate and said of

Pollard, “I whooped his * * * [posterior].” Pollard testified that he sustained a back

injury as a result of his fall.

       {¶8} The trial court found Borden guilty on both counts and imposed suspended

sentences of 180 days in jail on both counts. The court ordered Borden to serve one year

of community control and to stay away from the Laronde Apartments.

       Law and Analysis

       I. Manifest Weight

       {¶9} In her sole assignment of error, Borden argues that her convictions were

against the manifest weight of the evidence.

       {¶10} A manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion at trial. State v.

Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997); State v.

Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader

review, a reviewing court may determine that a judgment of a trial court is sustained by

sufficient evidence, but nevertheless conclude that the judgment is against the weight of

the evidence.
       {¶11} “When considering an appellant’s claim that a conviction is against the

manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may

disagree with the factfinder’s resolution of conflicting testimony.” Thompkins at 387,

quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The

reviewing court must examine the entire record, weigh the evidence and all reasonable

inferences, consider the witnesses’ credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

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

Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st

Dist.1983). In conducting such a review, this court remains mindful that the credibility of

witnesses and the weight of the evidence are matters primarily for the trier of fact to

assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and

two of the syllabus. Reversal on manifest weight grounds is reserved for the “‘exceptional

case in which the evidence weighs heavily against the conviction.”’ Thompkins at 387,

quoting Martin, supra.

       {¶12} Borden argues that her conviction for assault was against the manifest

weight of the evidence because the trial court erred in concluding that (1) she knowingly

caused physical harm to Pollard and (2) she was not justified in protecting her property.

       {¶13} Whether a person acted “knowingly” for purposes of an alleged crime, must

be ascertained from the totality of the surrounding circumstances. State v. Clark, 8th Dist.

Cuyahoga No. 83318, 2004-Ohio-2162, ¶ 12. Specific intent to cause a certain result is
not required to establish that a person acted “knowingly.” State v. Dixon, 8th Dist.

Cuyahoga No. 82951, 2004-Ohio-2406. This is because intent to commit an offense is not

easily proved with direct evidence. See State v. Brown, 8th Dist. Cuyahoga No. 68761,

1996 Ohio App. LEXIS 801 (Feb. 29, 1996). The factfinder may find an intent to commit

an act from the surrounding circumstances where it flows from the natural and probable

consequence of a defendant’s actions. Id.

      {¶14} In this instance, the surveillance video reflected that Borden employed such

force against Pollard that he was thrown over the arm of a sofa.      When one employs

force sufficient to knock another off their feet, they act with knowledge that physical

harm is a natural and probable consequence of their action.   In fact, it was fortuitous for

Borden that Pollard landed on a sofa rather than on the ground where he might have

suffered a more serious injury. We find no merit to Borden’s first argument.

      {¶15} We similarly find no merit to Borden’s defense of property argument.         To

prove the affirmative defense of defense of property, the defendant must present evidence

that she reasonably believed her conduct was necessary to defend her property against the

imminent use of unlawful force, and the force she used in defense was not likely to cause

death or great bodily harm. State v. Moses, 10th Dist. Franklin No. 13AP-816,

2014-Ohio-1748, ¶ 41. In this instance, we cannot say that the trial court’s rejection of

Borden’s defense of property argument was against the manifest weight of the evidence.

The surveillance video reflects that Borden improperly gained entry to the lobby of the

Laronde Apartments and the testimony of both Pollard and Pierre established that Pollard
explained he was relocating Borden’s items to the vestibule where they belonged.         There

is no evidence to support Borden’s contention that a reasonable person would have

believed Pollard was attempting to steal or damage Borden’s property. We find no error

in the trial court’s judgment that Borden employed force unnecessary to the situation.

       {¶16} Finally, Borden argues that her conviction for aggravated menacing was

against the manifest weight of the evidence because Pierre was not sufficiently fearful of

serious physical harm.    The relevant question here is whether the victim subjectively

believed at the time of the offense that the offender would cause serious physical harm.

Garfield Hts. v. Greer, 8th Dist. Cuyahoga No. 87078, 2006-Ohio-5936, ¶ 5, citing State

v. Perkins, 8th Dist. Cuyahoga No. 86685, 2006-Ohio-3678, ¶ 14.

       {¶17} In Cleveland v. Sands, 8th Dist. Cuyahoga No. 105141, 2017-Ohio-8313, we

upheld a conviction for aggravated menacing where the defendant made threatening

phone calls and texts and threatened to shoot the victim’s boyfriend. We found that the

victim, at the time of the threats, possessed a subjective belief that the defendant would

cause her and her boyfriend serious physical harm based on testimony from the victim

that she took the defendant’s threats seriously.

       {¶18} Similarly, in this instance, the trial court heard testimony from Pierre that

although she did not know if Borden was armed at the time, she believed that Borden

could come back with a gun and harm her.           Pierre testified that she was fearful of her

safety. According to Pierre, Borden supported her threat to shoot Pierre and Pollard

with a steady conversation about the fact that she had a permit to carry a gun and her
husband was a police officer.    Although Pierre remained in the lobby in relatively close

proximity to Borden while awaiting the arrival of the police, Pierre explained that she

chose not to leave out of a sense of obligation to remain in support of Pollard. Finally, the

credibility of Borden’s threats against Pierre was enhanced by the fact that Pierre had

already witnessed Borden assault Pollard. We cannot say that the trial court’s finding

that Borden’s threats caused Pierre to subjectively fear for her safety was against the

manifest weight of the evidence.

       {¶19} Borden’s sole assignment of error is overruled.

       {¶20} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant the 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 Cleveland

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.



______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
