[Cite as Cleveland v. Reese, 2016-Ohio-296.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 102936

CITY OF CLEVELAND

PLAINTIFF-APPELLEE 

vs. 

SHEILA REESE

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cleveland Municipal Court 

Case No. 2014CRB029336 

BEFORE: McCormack, J., Kilbane, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: January 28, 2016 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

By: David Martin King 

310 Lakeside Avenue 

Suite 400 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry 

City of Cleveland — Law Department 

601 Lakeside Avenue 

Room 106 

Cleveland, OH 44114 

Bryan Fritz 

Assistant City Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, OH 44113 
TIM McCORMACK, J.: 

{¶1} Appellant Sheila Reese and Jacqueline Garner were side-by-side neighbors 

living in the same duplex. Appellant moved two years ago to the duplex that Garner had 

lived in for 15 years. The two neighbors were not neighborly; they did not get along. 

The “bad blood” between them culminated in an over-the-top incident where appellant 

sprayed Garner with mace. The city of Cleveland charged appellant Reese with assault, 

a first-degree misdemeanor. 

{¶2} After a bench trial, the trial court found Reese guilty of assault. The court 

sentenced her to 180 days of incarceration, all 180 days suspended, and placed her on one 

year of probation. 

Trial Testimony 

{¶3} The city of Cleveland charged appellant under 621.03(a) of its codified 

ordinances, which states: “No person shall cause or attempt to cause physical harm to 

another.” The transcript reflects the following testimony at trial. 

{¶4} Jacqueline Garner testified that around 12:30 p.m., on October 6, 2014, she 

arrived at home. After parking her car, she went to get her mail. She then proceeded to 

walk to her side of the duplex. As she was looking down at her mail, appellant, who 

lived next door, came from behind and suddenly sprayed her with mace. Garner 

screamed, asking appellant why. Appellant said, “I want to fuck you up and your 

daughter.” Garner ran but fell. She got up and ran again to a municipal water 

department crew who happened to be working nearby. She hollered for help and started 
to have an asthma attack. The water department crew called 911 on her behalf. The 

police arrived 20 minutes later. Her daughter then arrived to take her to the hospital, 

where a police officer interviewed her regarding the incident. 

{¶5} Garner testified there was a troubled history between her and appellant. 

Ten days before the incident, on September 28, 2014, appellant tried to stab her. In April 

of that year, there was “another incident.” She did not elaborate on either. 

{¶6} On cross-examination, Garner also acknowledged that sometime in 

September 2014, the police were called to Garner’s unit when her daughters got into a 

fight. Afterward, appellant approached her about the police call and Garner told 

appellant to mind her own business. Garner denied she did anything on October 6 to 

provoke appellant before appellant sprayed her with mace. 

{¶7} Appellant testified to two events that precipitated the mace incident. Garner 

wanted to sue the apartment’s management company for not responding to her complaint 

about mold on her wall. Garner asked appellant to join her in the suit, but to Garner’s 

dismay, appellant refused to be involved. 

{¶8} Appellant also testified that on September 28, she called the police after 

hearing a disturbance from Garner’s apartment. Before the police came, she went over to 

Garner’s house. When she asked Garner if she was okay, Garner “attacked” her, saying, 

“Bitch, get your ass in [your own] house.” 

{¶9} Appellant described a drastically different version of the mace incident. 

She testified that on October 6, 2014, Reese’s boyfriend, Caesar Steele, was with her. 
After Garner arrived at home and parked her car, she ran up to appellant and pointed her 

finger in appellant’s face, saying “Bitch, you keep my name out [of] your mouth.” 

Appellant testified that Garner pointed her finger three to four inches from her face and 

she felt threatened. Appellant then put her own hand up to block Garner’s finger, saying 

“get your finger out [of] my face.” Garner pushed appellant’s hand in appellant’s face. 

The two then “tussled” with each other. At that point, Steele broke up the fight, but 

Garner turned on him. Appellant stated that she took out the mace from her purse and 

sprayed Garner in order to protect her boyfriend, who was 78 years old. 

{¶10} Steele testified that he saw Garner approach appellant, point her finger at 

appellant, and say “Bitch, I’m tired of you * * * talking about me to my neighbors.” The 

two started “tussling,” and he broke up the fight. When he turned around, they came at 

each other again. Appellant then reached into her purse, pulled out the mace, and 

sprayed Garner with it. On cross-examination, Steele acknowledged that “[n]obody’s in 

danger before the mace came out.” 

{¶11} Before announcing the verdict of guilty, the trial court reasoned that the use 

of the mace was excessive and unjustified under the circumstances. 

{¶12} On appeal, appellant raises three assignments of error. They state: 

1. The trial court erred and violated appellant’s state and federal due 

process rights when it disallowed the defendant’s witness testimony 

in regard to self-defense in violation of R.C. 2901.05, Ohio 

Constitution Article 1, Section 10, and U.S. Constitution 

Amendment VI. 

2. The trial court erred and violated appellant’s state and federal due 

process rights when it considered evidence not properly admitted 
when deciding appellant’s self defense claim in violation of R.C. 

2901.05, Ohio Constitution Article 1, Section 10, and U.S. 

Constitution Amendment VI. 

3. The trial court erred and violated the defendant’s due process rights 

when it failed to provide the defendant the opportunity for allocution 

at sentencing. 

Self-defense

{¶13} The first and second assignments of error both concern appellant’s claim of 

self-defense. In order to establish self-defense, appellant must demonstrate: (1) she was 

not at fault in creating the situation giving rise to the affray; (2) she had a bona fide belief 

that she was in imminent danger of great bodily harm, and that her only means of escape 

from such danger was in the use of such force; and (3) she must not have violated any 

duty to retreat or avoid danger. State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 

1279 (1990). The elements of self-defense are cumulative, and the defendant must prove 

all three elements by a preponderance of the evidence. State v. Jackson, 22 Ohio St.3d 

281, 284, 490 N.E.2d 893 (1986). 

{¶14} Under the first assignment of error, appellant claims the trial court erred in 

not allowing Caesar Steele to answer a question posed by her counsel, depriving her of a 

right to present evidence of self-defense. 

{¶15} Our review of the transcript reflects that appellant presented extensive 

evidence, through her and Steele’s testimony, to establish that she acted in self-defense 

when she sprayed Garner with mace. 
{¶16} Appellant’s claim relates to a question posed by her counsel to Steele: 

“[D]id you feel like Sheila [appellant] might be in danger?” The prosecutor objected to 

this question, and the court sustained the objection. Appellant claims that Steele’s 

testimony in response to this question would be essential to show that appellant, “as 

viewed by someone who knew her well, had sufficient reason to fear for her safety and 

act accordingly.” 

{¶17} Steele’s answer as to whether he felt appellant might be in danger was 

irrelevant to the germane issue of whether appellant had a bona fide belief that she was in 

imminent danger of bodily harm. This is because Ohio adopts a subjective test to 

determine whether the defendant holds a bona fide belief of imminent danger of bodily 

harm. State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 7 

(8th Dist.). The defendant acts in self-defense if he or she “honestly believes” that the 

danger is imminent. Id., citing State v. Sallie, 81 Ohio St.3d 673, 676, 693 N.E.2d 267 

(1998). Therefore, Steele’s testimony as to whether, from his perspective, he felt 

appellant might be in danger before assaulting Garner with mace was irrelevant in that it 

was not germane to the issue of whether appellant believed she was in danger of great 

bodily harm. Accordingly, the trial court did not abuse its discretion in excluding 

Steele’s testimony in response to the question posed. The first assignment of error lacks 

merit. 

{¶18} Under the second assignment of error, appellant argues the trial court 

erroneously based its verdict on “facts not established by the City.” The claim relates to 
the following statement made by the court when it articulated its reasoning before finding 

appellant guilty: 

The officer [whose] testimony we did not hear today, which is the officer 

who actually conducted the investigation, after hearing from both sides 

apparently decided at the time that the predominant aggressor in the 

situation was the defendant; and the Court can only assume that that 

conclusion was drawn because of the use of a weapon of some sort. 

{¶19} Appellant claims that in finding her guilty, the trial court improperly took 

“judicial notice” of the investigating officer’s determination that appellant was the 

primary aggressor. This claim lacks merit. 

{¶20} The notion of primary aggressor is typically referred to in the domestic 

violence context. “Primary aggressor” is not an element of domestic violence or any 

criminal offense, but rather a determination that is required to be made by a police officer 

before making an arrest in situations where two persons assault each other. State v. 

Boldin, 11th Dist. Geauga No. 2007-G-2808, 2008-Ohio-6408, ¶ 78; R.C. 2935.032(A); 

R.C. 2935.03(B)(3)(b). 

 {¶21} Our reading of the trial court’s remark in context indicates that the trial court 

was simply noting the fact that the investigating officer made the determination that 

appellant was the primary aggressor and therefore arrested her rather than Garner, 

because of appellant’s use of the spray. This observation was not a taking of judicial 

notice under Evid.R. 201. Furthermore, the trial court did not rely on the officer’s 
determination of primary aggressor to reach the guilty verdict. Rather, our review of the 

transcript reflects that the trial court reviewed and scrutinized the testimony of the trial 

witnesses to reach the conclusion that appellant’s self-defense claim was not supported by 

the evidence. The second assignments of error is without merit. 

Right of Allocution

{¶22} Under the third assignment of error, appellant claims the trial court failed to 

provide her the opportunity for allocution at sentencing. 

{¶23} A defendant’s right of allocation is described in Crim.R. 32. The rule 

provides that, at the time of imposing sentence, the trial court shall “[a]fford counsel an 

opportunity to speak on behalf of the defendant and address the defendant personally and 

ask if he or she wishes to make a statement in his or her own behalf or present any 

information in mitigation of punishment.” Crim.R. 32(A)(1). 

{¶24} R.C. 2929.19, which governs the trial court’s duty in a sentencing hearing, 

also requires the court to “ask the offender whether the offender has anything to say as to 

why sentence should not be imposed upon the offender.” R.C. 2929.19(A)(1). 

{¶25} The courts have recognized that the right of allocution applies to both felony 

and misdemeanor offenders. Beachwood v. Hill, 8th Dist. Cuyahoga No. 93577, 

2010-Ohio-3313, ¶ 32. 

{¶26} Our review of the sentencing transcript reflects that prior to sentencing, 

appellant’s counsel spoke on her behalf. Counsel noted certain mitigating factors: 

appellant suffered from anxiety disorder and she had a below average IQ. Counsel also 
presented the court with letters from people who vouched for appellant’s good character: 

she was a good tenant, and she was active in the church community. 

{¶27} Appellant addressed the court as well. However, despite being given the 

opportunity to make presentence comments, instead of providing mitigating information, 

she contested her guilt and claimed the victim fabricated the allegations. The trial court 

at that point stopped her and reminded her that she had been found guilty by the court. 

Only then did the trial court proceed to sentence her. Immediately after the trial court 

imposed the sentence, appellant had an outburst — interrupting the court and blurting out: 

 “She’s [referring to Garner] going to continue messing with me and calling the police. 

She going to continue.” The bailiff stopped appellant, and the court reprimanded her, 

threatening to place her in jail if she were to continue disrupting the courtroom. 

{¶28} The record thus reflects that appellant was given a full opportunity to 

address the court. She was interrupted only at the point that, instead of presenting 

information in mitigation of punishment, she continued to contest the court’s already 

determined finding of guilt. More importantly, the record reflects that her counsel had 

already advocated on her behalf for a lenient punishment. Appellant fails to demonstrate 

how her self-proclaimed lack of opportunity to fully address the court prejudiced her. 

State v. Smelcer, 89 Ohio App.3d 115, 623 N.E.2d 1219 (8th Dist.1993) (a claim 

regarding a defendant’s right of allocution is reviewed under a harmless error analysis). 

The third assignment of error is overruled. 

{¶29} Judgment affirmed. 
 It is ordered that appellee recover of 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. 

____________________________________ 

TIM McCORMACK, JUDGE 

MARY EILEEN KILBANE, P.J., and 

SEAN C. GALLAGHER, J., CONCUR