State v. MillerState v. Miller
Michele L. Berry, The Citadel, 114 East 8th Street, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, David B. Miller, appeals his conviction in the Mason Municipal Court for assault. For the reasons discussed below, we affirm appellant‘s conviction.
{¶2} The charges stemmed from events that occurred on August 19, 2009, when appellant and his companions were involved in a physical altercation with Joshua Smith and Jeremy Bishop.
{¶4} Appellant now appeals his conviction and sentence, raising four assignments of error for our review. For ease of discussion, appellant‘s assignments of error will be addressed out of order.
{¶5} Assignment of Error No. 1:
{¶6} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MILLER‘S MOTION FOR ACQUITTAL BASED ON INSUFFICIENT EVIDENCE OF MILLER‘S (1) IDENTITY AND (2) ROLE IN THE ALTERCATION TO SUSTAIN A CONVICTION FOR ASSAULT OF BISHOP OR SMITH. AS A RESULT, THE TRIAL COURT VIOLATED MILLER‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 1 SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.”
{¶7} Assignment of Error No. 4:
{¶8} “MILLER‘S CONVICTION OF ASSAULT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 1 SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.”
{¶9} In his first and fourth assignments of error, appellant argues that the trial court erred in overruling his
{¶10} We decline to consider appellant‘s sufficiency arguments for the following reasons. First, a
{¶11} In determining whether a conviction was against the manifest weight of the evidence, an appellate court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines 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. Ligon, Clermont App. No. CA2009-09-056, 2010-Ohio-2054, ¶23; State v. Eckert, Clermont App. No. CA2008-10-099, 2009-Ohio-3312, ¶16. However, while appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidence, these issues are primarily matters for thе trier of fact to decide. Ligon at ¶23; Bates, 2010-Ohio-1723 at ¶8. Therefore, when considering whether a judgment is against the manifest weight of the evidence in a bench trial, an appellate court will not reverse the conviction where the trial court could reasonably conclude from substantial evidence
{¶12} Appellant was convicted of assault in violation of
{¶13} Seven witnesses testified at appellant‘s bench trial: Abbey Meyer, Jeremy Bishop, Joshua Smith, and Officers Jeffrey Wyss and Michael Bishop testified for the state, while appellant and Matthew McCarthy testified for the defense.
{¶14} Abbey Meyer, the state‘s first witness, testified that at approximately 11:30 p.m. on August 18, 2009, she left the Fox and Hound Bar in Mason, Ohio, with her three companions, Jennifer Bowman, Jeremy Bishoр, and Joshua Smith. As Bowman drove toward Interstate 71, Meyer testified that she and Bowman were verbally harassed by several intoxicated men riding in appellant‘s vehicle. Meyer testified that the men in both vehicles began to argue at a stop light, and when the light turned green, appellant‘s vehicle veered across several lanes of traffic and followed them onto the highway. Meyer testified that “[w]e were turning left and the next thing I know they were right behind [our vehicle], maybe three inches on the bumper with their lights on swerving back and forth.” Meyer testified that both parties threw glass objects at each other on the highway, causing damage to both vehicles. As a result, Bowman followed appellant as he exited onto Western Row Road in order to report his license plate number to the police. According to Meyer, after Bowman parked, four men exited appellant‘s vehicle, approached Bowman‘s vehicle, opened the doors and began punching Bishop and Smith. Meyer testified that when she reached into Bowman‘s back seat in an effort to defend her friends, her engagement ring scratched one of the assailants. At trial, Meyer could identify only one of the assailants as Matthew McCarthy, and further testified that
{¶15} Additionally, Jeremy Bishop, Meyer‘s fiancé, testified that he threw a glass at appellant‘s vehicle on the highway because “they had thrown things at [Bowman‘s] car and were driving recklessly around us and the only thing I thought to do was just to throw something at them to get them to stop.” According to Bishop, when Bowman parked on Western Row Road, three or four men approached Bowman‘s vehicle on both sides and punched him “probably 20 times.” Bishop also identified Matthew McCarthy as one of the assailants, but explained that he could not identify any other men involvеd because he was “curled up” in the “fetal position” to protect his face.
{¶16} Joshua Smith also testified that after Bowman followed appellant‘s vehicle onto Western Row Road, she parked her vehicle “probably ten * * * [or] fifteen feet” behind appellant‘s vehicle. Smith testified that at this point, three or four men from appellant‘s vehicle ran toward Bowman‘s vehicle and began punching him and Bishop inside the vehicle.
{¶17} Officer Michael Bishop of the City of Mason Police Department testified that he spoke with appellant during the course of his investigation on August 19, 2009. Aсcording to Officer Bishop, appellant “admitted that he was one of the people that went back [to Bowman‘s vehicle] and was involved in the physical altercation.” Officer Bishop further testified that he observed scratches on appellant‘s arm, stating “it‘s pretty obvious to me what has happened here. All scratched up and [appellant] didn‘t get all scratched up sitting in the driver‘s seat of the car.”
{¶18} Witnesses for the defense testified that a different series of events occurred after both vehicles parked on Western Row Road. Appellant testified that he exited the highway with the intention of assessing the damage to his vehicle caused by the glass thrown by Jeremy Bishop. Appellant testified that after he parked, Bowman‘s
{¶19} Matthew McCarthy, appellant‘s friend, testified that when he exited appellant‘s vehicle to help assess the damage, “two guys * * * got out and like came tоwards us, and I looked over and I saw [appellant] already kind of getting into it with [one] guy.” McCarthy testified that his four other companions remained inside appellant‘s vehicle during the entire altercation.
{¶20} Appellant argues that there was no evidence identifying him as Bishop or Smith‘s assailant and that the state‘s “inferential arguments attempting to prove [appellant] as the assailant” were tenuous and unreasonable.
{¶21} “In order to warrant a conviction, the evidence presented must establish beyond a reasonable doubt the identity of the accused as the person who actually committed the crime.” State v. Raleigh, Clermont App. Nos. CA2009-08-046, CA2009-08-047, 2010-Ohio-2966, ¶45, quoting State v. Harris, Butler App. No. CA2007-11-280, 2008-Ohio-4504, ¶12. “The identity of the accused may be established by direct or circumstantial evidence.” Harris at ¶12. See, also, State v. Dewberry, Fayette App. No. CA2007-01-004, 2007-Ohio-5394, ¶18; State v. Nicely (1988), 39 Ohio St.3d 147, 151 (circumstantial evidence and direct evidence inherently possess the same probative value, and there is no separate standard of rеview for circumstantial evidence).
{¶22} After reviewing the entire record, we find that appellant‘s conviction for assault was not against the manifest weight of the evidence. The state presented substantial circumstantial evidence to prove appellant‘s assault conviction bеyond a reasonable doubt. Abbey Meyer testified her engagement ring scratched one of the
{¶23} While appellant may claim that he fought in self-defense, it is well established that “[w]hen conflicting evidence is presented at trial, a conviction is not against the manifest weight оf the evidence simply because the [trier of fact] believed the prosecution testimony.” Bates, 2010-Ohio-1723 at ¶11. Rather, we find it reasonable that the trial court believed the state‘s version of the events, disbelieved the defense and convicted appellant accordingly. It is clear that the trial court found the prosecution‘s witnesses’ testimony to be plausible and supported by other circumstantial evidence. Therefore, we find that appellant‘s assault conviction was not against the manifest weight of the evidence.
{¶24} Accordingly, appellant‘s first and fourth assignments of error are оverruled.
{¶25} Assignment of Error No. 2:
{¶26} “THROUGH HIS UNREBUTTED TESTIMONY MILLER PROVED BY A PREPONDERANCE OF EVIDENCE THAT HE ACTED IN SELF DEFENSE; THEREFORE THE TRIAL COURT ABUSED ITS DISCRETION BY CONVICTING MILLER AFTER HE DEMONSTRATED A COMPLETE DEFENSE.” [sic]
{¶27} In his second assignment of error, appellant argues that the trial court abused its discretion by convicting him because he successfully established all essential elements of self-defense. We disagree.
{¶28} An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Atkinson, Warren App. No. CA2009-10-129, 2010-Ohio-2825, ¶7. When applying the
{¶29} Under Ohio Law, self-defense is an affirmative defense. See State v. Ford, Butler App. No. CA2009-01-039, 2009-Ohio-6046, ¶19. To establish self-defense, the defendant must establish by a preрonderance of the evidence: “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) that the defendant must not have violated any duty to retreat or avoid the danger.” Id.; State v. Robbins (1979), 58 Ohio St.2d 74, 79-80. See, also,
{¶30} Our review of the record indicates that appellant failed to provide sufficient evidence to warrant a finding that he acted in self-defense. Although appellant contends that he was not at fault in creating the situation thаt gave rise to the physical altercation, the evidence presented demonstrated otherwise. Abbey Meyer, Joshua Smith and Jeremy Bishop each testified that three or four individuals exited appellant‘s vehicle, approached Bowman‘s vehicle, and repeatedly punched Smith and Bishop inside the vehicle. Further, the record reveals Bowman‘s frantic conversation with a 911 operator, in which she exclaimed, “[A] bunch of guys got out of their car and * * * got in my car and kept throwing stuff at my car. * * * I want to press charges because * * * they got inside my car and attacked [my friend] and he‘s bleeding all over. * * * They just
{¶31} As previously discussed, while some witnesses contradicted others at trial, the trial court was in the best position to judge the credibility of these witnesses. See, e.g., Bates, 2010-Ohio-1723 at ¶8. Upon review, because appellant failed to establish the first element of self-defense we find that the trial court did not abuse its discretion in rejecting appellant‘s claim of self-defense.
{¶32} Accordingly, appellant‘s second assignment of error is overruled.
{¶33} Assignment of Error No. 3:
{¶34} “THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR BY IMPROPERLY PLACING THE BURDEN OF PROOF ON MILLER TO DEMONSTRATE THAT HE ACTED IN SELF-DEFENSE AS OPPOSED TO PLACING THE BURDEN ON THE STATE TO REBUT THE PRESUMPTION THAT HE ACTED IN SELF-DEFENSE. IN DOING SO, THE TRIAL COURT VIOLATED MILLER‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 1 SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.”
{¶35} In his third assignment of error, appellant argues that the trial court improperly placed the burden of proving self-defense upon appellant, rather than the state. Specifically, appellant argues under “Ohio‘s castle doctrine, when a person is being attacked in his car or home, he is presumed to have acted in self-defense, a presumption that the state must rebut by a preponderance.” We disagree.
{¶37} However, by his own admission to Officer Bishop, appellant was not occupying his vehicle at thе time the physical altercation occurred. Rather, appellant admitted that he “got out of [his] car and went back to the car that was behind [him] and * * * began to fight.” Despite appellant‘s subsequent testimony to the contrary, this court has previously held that statements made closer in time tо an incident can be more reliable than contradictory statements made later, during trial. See, e.g., Matter of McCoy (Dec. 27, 1993), Fayette App. No. CA93-06-016, at 3.
{¶38} Because (1) appellant admittedly did not occupy his vehicle during the physical altercation, and (2) competent and credible evidence existed to support the conclusion that appellant was at fault in creating the situation leading to the altercation, the rebuttable presumption that appellant acted in self-defense under
{¶39} Accordingly, appellant‘s third assignment of error is overruled.
{¶40} Judgment affirmed.
YOUNG, P.J., and POWELL, J., concur.