[Cite as State v. Lambert, 2013-Ohio-4187.]


                   Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99238




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                           LATIA DENEICE LAMBERT
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-561000

        BEFORE: Rocco, J., Stewart, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: September 26, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Patrick Colan
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

      {¶1} Defendant-appellant Latia Deneice Lambert appeals from her conviction for

felonious assault. Lambert argues that the conviction was against the manifest weight of

the evidence.     She asserts that the evidence presented at trial established only that

Lambert committed the inferior degree offense of aggravated assault. We conclude that

the evidence supported the felonious assault conviction, and so we affirm the trial court’s

final judgment.

      {¶2}      Lambert was charged with two counts of felonious assault under R.C.

2903.11(A)(1) and 2903.11(A)(2) for throwing a bottle at the victim, Rashidta Kimble.

Lambert was offered, but did not accept, an opportunity to plead guilty to aggravated

assault. The case then proceeded to a bench trial. The only witnesses who testified

were Kimble and Lambert.

      {¶3} Both women testified that they had been physically and verbally arguing with

one another prior to Lambert throwing the bottle at Kimble. Kimble testified that the

bottle hit her on the side of her face and the middle of her head. As a result, Kimble

required hospitalization, receiving several stitches. The injuries resulted in scarring.

Kimble testified that she did not threaten Lambert with any weapons at any time.

Lambert testified that she did not intend to hurt Kimble when she threw the bottle. She

stated that she only wanted Kimble to “stop attacking her.” Tr. 69.

      {¶4} The trial court found Lambert guilty on both counts of felonious assault and
determined that the counts should merge. The prosecution elected to go forward with
count one under R.C. 2903.11(A)(1). Lambert was sentenced to one year of probation.
Lambert now appeals presenting a single assignment of error for our review:
       The felonious assault conviction is against the manifest weight of the
       evidence.

       {¶5} In reviewing a claim challenging the manifest weight of the evidence, our

task is to review the entire record, weigh the evidence and all reasonable inferences, and

consider the credibility of witnesses. We must then determine whether 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.” State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). We “will not reverse a verdict when the trier of fact could

reasonably conclude from substantial evidence that the prosecution proved the offense

beyond a reasonable doubt.”       State v. Cunningham, 8th Dist. Cuyahoga No. 84960,

2005-Ohio-3007, ¶ 16, citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978).

A reviewing court should grant a new trial only in the exceptional case where the

evidence weighs heavily against the conviction. Thompkins at 387.

       {¶6}   Lambert was convicted for felonious assault under R.C. 2903.11(A)(1),

which provides that “[n]o person shall knowingly * * * [c]ause serious physical harm to

another * * *.”    “Aggravated assault contains the same elements as felonious assault

except for the additional mitigating element of serious provocation.” Cunningham ¶ 17.

It is the defendant’s burden to demonstrate, by a preponderance of the evidence, that he or

she acted under serious provocation. Id., citing State v. Rhodes, 63 Ohio St.3d 613, 590

N.E.2d 261 (1992).
       {¶7} On appeal, Lambert does not deny that the state proved the elements of

felonious assault. Rather, Lambert argues that the evidence presented at trial established

that Kimble seriously provoked her, and that Lambert threw the bottle at Kimble under

the influence of sudden passion. Because Lambert was seriously provoked, she argues

that the trial court lost its way in finding her guilty of felonious assault, and that she was

guilty only of aggravated assault. We disagree.

       {¶8} Serious provocation is defined as that which is “‘reasonably sufficient to

bring on extreme stress and * * * reasonably sufficient to incite or to arouse the defendant

into using deadly force.’” Id. at ¶ 18, quoting State v. Deem, 40 Ohio St.3d 205, 533

N.E.2d 294 (1988). “In determining whether the provocation was reasonably sufficient

to incite the defendant into using deadly force, the court must consider the emotional and

mental state of the defendant and the conditions and circumstances that surrounded him at

the time.” Id., quoting Deem, 40 Ohio St.3d 205, 533 N.E.2d 294. The provocation

“must be sufficient to arouse the passions of an ordinary person beyond the power of his

or her control.” Id., quoting State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).

       {¶9} According to Lambert, the two and a half hour argument between her and

Kimble was objectively sufficient to induce a sudden passion or fit of rage. She asserts

that Kimble was “aggressive” during the argument, that Kimble had gotten into Lambert’s

face, that Kimble had hit Lambert “with her fist,” that they had both been “grabbing each

other [and] pulling each other’s hair,” and that the other two people in the apartment had

trouble breaking up the initial physical altercation. Lambert states that when she threw
the bottle at Kimble, she was acting out of desperation; she was physically and

emotionally spent after a lengthy confrontation during which she perceived Kimble as

attacking her, and she felt trapped and unsafe.

       {¶10} But despite Lambert’s characterization of events, the evidence reveals that

Kimble was not seriously provoking Lambert when Lambert threw the bottle. Kimble

testified that the two began verbally arguing, that Kimble got into Lambert’s face, and

then Lambert pushed Kimble in the chest. The two tussled for a few minutes until the

two other occupants of the apartment, Janelle and China, broke up the fight. After the

initial physical altercation, Kimble told Lambert to leave Kimble’s apartment, but

Lambert refused. The two continued to verbally argue about whether Lambert would

leave. Lambert testified that she refused to leave because she had nowhere to go with

her infant son. Eventually, the argument escalated again. Janelle was holding back

Kimble and China was holding back Lambert. It was at this point that Lambert threw the

bottle at Kimble.

       {¶11} On these facts, Lambert has failed to demonstrate that she acted under

serious provocation. Lambert was the first person to get physical when she initially

pushed Kimble in the chest. After that initial physical conflict ended, Lambert refused to

leave Kimble’s apartment. Importantly, at the time that Lambert threw the bottle at

Kimble, Kimble was physically restrained: Kimble was not physically attacking or

otherwise approaching Lambert. Furthermore, although the entire incident occurred over

a period of two and a half hours, the conflict was intermittent during that period.
Lambert testified that she and Kimble had an opportunity to “chill” between the first

physical altercation and the incident that culminated in Lambert throwing the bottle.

       {¶12} Lambert failed to establish that Kimble’s behavior toward her constituted

provocation that was reasonably sufficient to incite Lambert into using deadly force.

Accordingly, the felonious assault conviction was not against the manifest weight of the

evidence. We overrule the sole assignment of error.

       {¶13} The trial court’s judgment 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 be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
