STATE OF OHIO, Appellee, - vs - DESHANNON LEWIS, Appellant.
CASE NO. CA2019-07-128
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/20/2020
2020-Ohio-3762
CRIMINAL APPEAL FROM BUTLER COUNTY COURT AREA III Case No. CRB1801337
[Cite as State v. Lewis, 2020-Ohio-3762.]
O P I N I O N
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Christopher Paul Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant
{¶ 1} Appellant, Deshannon Lewis, appeals his conviction in the Butler County Area III Court for one count of assault following a bench trial. For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} On August 24, 2018, Officer Brian Schlensker with the West Chester Township Police Department filed a complaint charging Lewis with one count of assault in violation of
{¶ 3} On May 10, 2019, the matter was tried to the bench. During trial, the trial court heard from two witnesses: Officer Schlensker and P.R. P.R., who stands 6‘2” tall and weighs 270 pounds, testified that he was unloading materials from a truck when D.L. blocked his “right of way” and “bumped” into him while the two were “crossing paths.” After bumping into each other, P.R. testified that D.L. then “threw an elbow” at him while his “hands [were] full carrying materials.” P.R. testified that
{¶ 4} Upоn being elbowed by D.L., P.R. testified that he “continued to walk” a few steps with D.L. “walking next to [him].” P.R. testified that D.L. then “threw a punch” that contacted him in the chest. After D.L. threw this punch, P.R. testified that D.L. then “came at [him pretty aggressively].” To this, P.R. testified that he “threw a punch back” at D.L. striking him “in the back [and] in the shoulder.” When asked if he had punched D.L. before D.L. had punched him, P.R. testified, “No.”
{¶ 5} P.R. testified that he and D.L. then “squared up to fight.” However, befоre any more punches could be thrown, P.R. testified that Lewis came up from behind him and “threw [a] cheap shot[]” that “struck [him] in the back of the head” knocking him unconscious. When asked if Lewis ever punched him again besides the one punch to the back of the head, P.R. testified that Lewis only punched him that one time before “[h]e was detained.”
{¶ 6} P.R. testified that he “did not initiate” the fight with either Lewis or his brother, D.L., and that he “felt like it was a setup” that required him to defend himself. As P.R. testified:
Q: Is it your testimony today that you did not initiate this fight?
A: I did not initiate this fight.
Q: You did not instigate this fight?
A: I was – I took two shots before I did anything so I was elbowed and then punched.
Q: So you are the victim here?
A: Yes.
{¶ 7} P.R. also testified that he did not want to fight that morning and was not looking for a fight with either D.L. or Lewis that day. P.R. instead testified that it was D.L. who was looking for a fight with him. As P.R. testified:
[D.L.] had always bantered [and was] trying to almost instigate or to (indiscernible) or something with me. My оnly interest as a contractor was to teach him a trade. So his antagonist mentality was – wasn‘t being accepted by – he had been in an altercation with other co-workers or our co-workers.
{¶ 8} After falling unconscious to the ground, P.R. testified that he woke up to a “commotion.” P.R. testified that he then got up, walked into the office, and spoke with his boss. P.R. testified that he then reviewed the videо surveillance footage of the assault because he “[w]asn‘t sure what happened.” P.R. testified that somebody in the office then called 9-1-1.
{¶ 9} P.R. testified that the injuries he sustained from the assault ultimately resulted in him receiving medical treatment at the hospital for “[p]lus or minus four hours” after he was transported to the hospital via an ambulance. Because P.R. did not have health insurance at the time of the assault, P.R. testified that he received a medical bill charging him over $6,500 in out-of-pocket medical expenses. P.R., however, testified that he was “not sure if anything ha[d] been paid on that bill.”
{¶ 10} Officer Schlensker testified that he was the officer who was dispatched to the scene to investigate the assault involving Lewis, D.L., and P.R. During his investigation, Officer Schlensker testified that he obtained the videо surveillance footage of the assault. When asked if that was “pretty much the extent of the evidence that was gathered,” Officer Schlensker testified, “Correct.” The video surveillance footage was then played for the trial court and admitted into evidence without objection. A review of that video surveillance footage confirms P.R.‘s testimony regarding the assault.
[Lewis] did not get involved at all. He didn‘t get involved with that interaction [between P.R. and D.L.] at all. He, in fact, stands there and watches it. And then when the giant rhinoceros, 270 pounds, 6‘2” is attacking his little brother, that‘s when he gets in. He did exactly what I would do if it was my sister being attacked by someone twice her size. He‘s not required to wait for [P.R.] to knock his brother out before he can step in when someone believes that a family member is in imminent danger of bodily harm than that person can get in and use reasonable force necessary to stop it, and that‘s what he did. *** He has a right to defend his brother. He did absolutely what any reasonable person would have done in that situation.
{¶ 12} Following closing arguments, the trial court issued a decision from the bench finding Lewis guilty as charged. In reaching this decision, the trial court found no merit to Lewis’ claim that he was merely acting in defense of his brother, D.L. The trial court instead found Lewis’ act of punching P.R. in the back of thе head was a “cheap shot” that amounted to “assaultive behavior” in violation of
***
I get the desire to defend your brother but the – I mean it‘s a cheap shot from behind. I mean if you had squared off with him and hit him, * * * but a shot from behind – you know, the size relative size don‘t matter to me as far as who‘s squaring off against who David, Goliath, all of this other stuff, you know what – * * *. A blоw from behind is a cheap shot. * * * [T]he blow, the punch to the back of the head this Court does not find justified under the theory that I consider. So I make a finding of guilty with respect to the assault, single blow to the back of the head constitutes assaultive behavior.
***
{¶ 13} Immediately after finding Lewis guilty, the trial court sentenced Lewis to a suspended 30-day jail sentence, $150 fine, and court costs. The trial court also ordеred Lewis to pay a then undetermined amount of restitution to P.R. to compensate him for his unpaid out-of-pocket medical expenses. The trial court issued a judgment entry later that day that noted its verdict finding Lewis guilty, as well as its sentencing decision as set forth above. The trial court‘s judgment entry also noted that additional documentation was needed in order to determine the propеr amount of restitution that Lewis would be ordered to pay P.R. P.R. was ordered to provide this documentation to the trial court at an upcoming restitution hearing scheduled on June 18, 2019.
{¶ 14} On June 18, 2019, the parties appeared before the trial court for the restitution hearing.1 During this hearing, P.R. submitted evidence indicating he had incurred out-of-pocket medical expenses totaling $4,785.66 resulting from the assault. Hearing no objection from Lewis, the trial court determined that this was the proper amount of restitution that Lewis
Final Appealable Order
{¶ 15} Prior to addressing Lewis’ single assignment of error, we note the state‘s argument alleging Lewis’ appeal must be dismissed since he did not file a notice of appeal within 30 days after the trial court issued its May 10, 2019 judgment entry in accordance with
{¶ 16} Unlike the trial court‘s judgment entry originally filed on May 10, 2019, the trial court‘s judgment entry that it filed on June 18, 2019 includes the trial court‘s guilt finding, its sentence, and the final amount of restitution that Lewis was ordered to pay. Therefore, rather than the trial court‘s May 10, 2019 judgment entry, it was the trial court‘s June 18, 2019 judgment entry that was a final appealable order. See, e.g., In re J.C., 11th Dist. Lake No. 2012-L-083, 2013-Ohio-1292, ¶ 12 (“as the April 9, 2012 entry contemplated further action by setting a restitution hearing for a later date, it was not a final, appealable order“). Accordingly, because Lewis filed his notice of appeal within 30 days of the trial court‘s June 18, 2019 judgment entry, Lewis’ notice of appeal was timely filed under
Appeal
{¶ 17} In his single assignment of error, Lewis argues his conviction must be reversed because it was against the manifest weight of the evidence.
{¶ 18} A manifest weight of the evidence challenge examines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other.” State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, this court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168.
{¶ 19} While a manifest weight of the evidence review requires this court to evaluate credibility, the dеtermination of witness credibility is primarily for the trier of fact to decide. State v. Baker, 12th Dist. Butler No. CA2019-08-146, 2020-Ohio-2882, ¶ 30, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. “A verdict can be against the manifest weight of the evidence even though legally sufficient evidence supports it.” State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 140. This court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶ 20} Lewis was convicted of assault in violation of
{¶ 21} Lewis argues his conviction is against the manifest weight of the evidence because the trial court incorrectly weighed the evidence and failed to properly execute its factfinding responsibilities. This is because, according to Lewis, he was acting in defense of his brother, D.L., when he punched P.R. in the back of the head knocking him unconscious, conduct that Lewis claims was “reasonable under the circumstances.” Lewis supports this argument by making the general claim that, at his trial, he was entitled to the burden-shifting changes the General Assembly made to the self-defense statute,
{¶ 22} Lewis’ argument requires this court to first determine whether he was entitled to the burden-shifting changes the General Assembly made to the self-defense statute,
{¶ 23} Prior tо March 28, 2019, the self-defense statute placed “[t]he burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, [was] upon the accused.” Former 2901.05(A). However, on March 28, 2019, the self-defense statute was amended to shift the burden of proof to the state to “prove beyоnd a reasonable doubt that the accused person did not use
{¶ 24} In State v. Debord, 12th Dist. Clinton No. CA2019-03-003, 2020-Ohio-57, this court held “that appellant was ‘not entitled to [the] retroactive application of the burden-shifting changes made by the legislature to Ohio‘s self-defense statute,
{¶ 25} This court was not alone in this holding. See State v. Williams, 3d Dist. Allen No. 1-19-39, 2019-Ohio-5381, ¶ 12, fn. 1 (holding it is “the version of
{¶ 26} However, more recently, in Gloff, 2020-Ohio-3143, this court held that “the General Assembly enacted H.B. 228 to be effective March 28, 2019 and therefore criminal trials held on or after that date must be conducted in accordance with the provisions of that section.” Id. at ¶ 28, citing State v. Humphries, 51 Ohio St.2d 95 (1977), paragraph four of the syllabus. This court reached this decision upon finding “[t]he H.B. 228 amendment applies prospectively to trials,” and the “applicable burden of proof for the affirmative defense of self-defense,” and not “the conduct giving rise to the offense.” (Emphasis sic.). Id. at ¶ 23. Therefore, in accordance with this court‘s more recent decision in Gloff, we overrule our decision in Debord and hold that the burden-shifting changes made by the legislature to Ohio‘s self-defense statute,
{¶ 27} At trial, Lewis argued that he was acting in defense of his brother, D.L., when he came up from behind P.R. and punched him in thе back of the head knocking him unconscious. Lewis claims his actions were “legally justified” in order to “neutralize [P.R.‘s] size advantage.” However, while we agree that P.R. was noticeably larger than D.L., the record in this case is clear; the aggressor, D.L., voluntarily entered into the physical altercation with the victim, P.R. It is well established that “a person is not entitled to claim defense of another in regard to a physical altercation if the person being defended voluntarily entered the physical altercation.” State v. Gray, 12th Dist. Butler No. CA2010-03-064, 2011-Ohio-666, ¶ 50. Ohio courts have in fact “long recognized that a person cannot provoke [an] assault or voluntarily enter an encounter and then claim a right of self-defense.” State v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002 Ohio App. LEXIS 329, *7 (Jan. 22, 2002).
{¶ 28} While not explicit in its decision, the trial court determined that the state had met its burden of proof set forth in
{¶ 29} In light of the foregoing, while we agree that Lewis was entitled burden-shifting changes the General Assembly made to the self-defense stаtute at trial, the fact nevertheless remains that Lewis’ conviction was not against the manifest weight of the evidence. In so holding, we note that unlike in Gloff where this court could not “assume the jury would reach the same verdict beyond a reasonable doubt when it was instructed that self-defense was Gloff‘s burden alone,” this case does not present those same concerns. Gloff, 2020-Ohio-3143 at ¶ 24. This is because, unlike in Gloff, this matter was tried to the bеnch, not a jury. It is well established that in a bench trial “the trial court is presumed to know the applicable law and apply it accordingly.” State v. Cornish, 12th Dist. Butler No. CA2014-02-054, 2014-Ohio-4279, ¶ 30, citing State v. Lloyd, 12th Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-3383. Although without the benefit of our recent decision in Gloff, that is exactly what the trial court did here. Therefore, finding Lewis’ conviction was not against the manifest weight of the evidence, Lewis’ single assignment of error lacks merit and is overruled.
{¶ 30} Judgment affirmed.
RINGLAND and PIPER, JJ., concur.
S. POWELL
PRESIDING JUDGE