STATE OF OHIO, PLAINTIFF-APPELLEE, v. KENT WILLIAMS, DEFENDANT-APPELLANT.
CASE NO. 1-19-39
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
December 30, 2019
[Cite as State v. Williams, 2019-Ohio-5381.]
Aрpeal from Allen County Common Pleas Court, Trial Court No. CR 2018 0070, Judgment Affirmed
Andrea M. Brown for Appellant
Jana E. Emerick for Appellee
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Kent D. Williams ( Williams ), appeals the May 6, 2019 judgment entry of sentence of the Allen County Common Pleas Court. For the reasons that follow, we affirm.
{¶2} This case stems from a June 17, 2017 altercation between Williams and Lindsey McCoy ( McCoy ), nka Lindsey Kramer, and Tyler Dunlap ( Dunlap ) of the Ohio Department of Rehabilitation and Correction that occurred while Williams was an inmate at Allen-Oakwood Correctional Institution ( ACI ). As a result of the altercation, Williams was indicted on two counts of assault in violation of
{¶3} After a bench trial on May 6, 2019, the trial court found Williams guilty of both counts in the indictment. (Doc. Nos. 82, 155); (May 6, 2019 Tr. at 64-65). On June 17, 2019, the trial court sentenced Williams to 9 months in prison on each count, respectively, and ordered the terms to be served consecutively, for an aggregate sentence of 18 months in prison. (Doc. No. 162). The trial court also ordered the prison terms to be served consecutive to a prison term imposed in another case. (Id.).
{¶4} Williams filed his notice of appeal on June 21, 2019. (Doc. No. 165). He raises one assignment of error for our review.
The Trial Cоurt‘s Guilty Verdict As To Each Count Of Assault Was Not Supported By Sufficient Evidence And Was Against The Manifest Weight Of The Evidence.
{¶5} In his assignment of error, Williams argues that his assault convictions are based on insufficient evidence and that his convictions are against the manifest wеight of the evidence. In particular, Williams argues that the trial court lost its way in evaluating the evidence to conclude that he acted in self-defense.
Standard of Review
{¶6} Manifest weight of the evidence and sufficiency of the evidence are clearly different legal concepts. State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Thus, we address each legal concept individually.
{¶7} An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believеd, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, [t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prоsecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. In deciding if the
{¶8} On the other hand, in determining whether a conviction is against the manifest wеight of the evidence, a reviewing court must examine the entire record, weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses 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, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 230, 231 (1967). When applying the manifest-weight standard, [o]nly in exceptional cases, where the evidence weighs heavily against the conviction,’ should an appellate court overturn the trial cоurt‘s judgment. State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence
{¶9} We begin by addressing the sufficiency of the evidence supporting Williams‘s assault convictions. Williams does not dispute that the State proved the elements of assault. Rather, he argues on appeal that his assault convictions are unsuppоrted by sufficient evidence because he presented sufficient evidence that he acted in self-defense.
{¶10} Williams‘s challenge to the sufficiency of the evidence as to self-defense is inappropriate. See State v. Vasquez, 10th Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 52. Self-defense is an аffirmative defense, and the accused bears the burden of proving it by a preponderance of the evidence. State v. Belanger, 190 Ohio App.3d 377, 2010-Ohio-5407, ¶ 4 (3d Dist.), citing State v. Williford, 49 Ohio St.3d 247 (1990). See also
{¶11} Williams was convicted of assault in violation of
{¶12} Self-defense is an affirmative defense, which means that the burden of going forward is on the defendant who must prove each element by а preponderance of the evidence.’1 State v. Oates, 3d Dist. Hardin No. 6-12-19, 2013-Ohio-2609, ¶ 10, quoting State v. Kimmell, 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶ 19, citing State v. Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-6870, ¶ 24 and
{¶13} The elements of self-defense differ depending on whether the defendant used deadly or non-deadly force to defend himself. State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 15, citing State v. Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-6870, ¶ 25.
{¶14} To establish self-defense through the use of non-deadly force, an accused must prove: (1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily harm; and (3) the оnly means to protect himself from such danger was the use of force not likely to cause death or great bodily harm. Accord State v. Vu, 10th Dist. Franklin No. 09AP-606, 2010-Ohio-4019, ¶ 10; State v. Juntunen, 10th Dist. Franklin No. 09AP-1108, 2010-Ohio-5625, ¶ 21; Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006). See In re J.J., 5th Dist. Licking No. 16 CA 44, 2016-Ohio-8567, ¶ 14; State v. Koch, 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 62; State. v. Jeffers, 11th Dist. Lake No. 2007-L-011, 2008-Ohio-1894, ¶ 81. See also State v. Wagner, 3d Dist. Seneca No. 13-15-18, 2015-Ohio-5183, ¶ 10. In instances where less than deadly force is used, the defendant need only show a fear of bodily harm, not of death or grеat bodily harm. State v. Brown, 2d Dist. Montgomery No. 27312, 2017-Ohio-7424,
Both versions of self-defense, however, use the term great bodily harm : self-defense involving deadly force uses the term to describe the level of harm the defendant must perceive before he or she is justified in using deadly force, while self-defense with non-deadly force uses the term to describe the level of force a defendant may not apply.
Juntunen at ¶ 23. See Jeffers at ¶ 68. Likewise, there is no duty to retreat in cases involving non-deadly force. Brown at ¶ 25, citing State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-6541, ¶ 21, citing Perez at 472. [I]f there is sufficient evidence on the issue of self-defense involving non-deadly force * * * the trial court must instruct the jury on that defense.’ Jeffers at ¶ 76, quoting State v. Griffin, 2d Dist. Montgomery No. 20681, 2005-Ohio-3698, ¶ 16, citing State v. Ervin, 75 Ohio App.3d 275, 279 (8th Dist.1991). If a defendant fails to prove any one of the elements of self-defense by a preponderance of the evidence, he has failed to demonstrate that he acted in self-defense. (Italics added.) State v. Kimmel, 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶ 21, citing State v. Jackson, 22 Ohio St.3d 281, 284 (1986).
When the situation involves the use of force against law enforcement officers, a private citizen may not in the absence of excessive or unnecessary force by an arresting officer use forcе to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.
{¶15} At trial, McCoy identified State‘s exhibit 1, a video recording depicting the altercation. (Id. at 9-10). McCoy testified that Williams was segregated in a restrictive-housing unit receiving limited рrivileges for rule infractions within the institution or awaiting transport to a higher security facility. (May 6, 2019 Tr. at 8). According to McCoy, inmates in that unit receive two mandatory one-hour recreation periods. (Id. at 10). She testified that Williams was confrontational over a disagreement with her and Dunlap regarding the allotted recreational time refusing to return to his cell after a recreational period. (Id. at 12). McCoy further testified that because Williams refused to comply with the order to return to his cell, Dunlap placed his hand on Williams‘s left elbow and said, Come on, man, it doesn‘t have to be like that. (Id. at 14). As a result, according to McCoy, Williams took an aggressive stance, and stated, Well, if this is how it‘s going to be then I‘m not locking down. (Id.). Thereafter, according to McCoy,
{¶16} Williams testified in his defense that he was upset and told [McCoy and Dunlap he was] not locking down. (Id. at 34, 36, 39). However, he refuted McCoy‘s claim that he took an aggressive stance. (Id. at 36). Rather, he testified that he was tackled by all the correctional officers with Dunlap placing him in a choke hold.2 (Id. at 37). Williams testified that he began hitting Dunlap with his (Dunlap‘s) radio in self-defense. (Id. at 37-38).
{¶17} Williams also presented the testimony of Kenneth Hill ( Hill ) who testified that Williams refused to comply with their orders because McCoy and Dunlap ended the recreational period еarly. (Id. at 43-44). According to Hill, Williams refused to comply with their order, Dunlap grabbed him and spun him
{¶18} Williams also presented the testimony of Richard Mort ( Mort ) who testified that he didn‘t really watch the altercаtion between Williams and Dunlap. (Id. at 48). He testified that after hearing the commotion, he exited his cell, which was on the top tier of the segregation unit, and saw a couple of fists thrown and a walkie-talkie go sliding and mace being sprayed. (Id. at 49). Becаuse Mort smelled mace and didn‘t want [to be] maced, he returned to his cell. (Id. at 48-49).
{¶19} We conclude that the trial court did not lose its way as to Williams‘s self-defense assertion. First, Williams must show that he was not at fault for creating the situation giving rise to the affray. Here, therе is no dispute that Williams was non-compliant with the orders of McCoy and Dunlap, because Williams refused the order to return to his cell. As such, Dunlap was permitted to use less-than-deadly force against Williams to control the situation. See
{¶20} Upon our review, we conclude that the weight of the evidence supports that Williams was at fault for creating the situation. Because the elements of self-defense are cumulative and Williams cannot establish he was not at fault for creating the situation, Williams failed to demonstrate that he acted self-defense. Kimmel, 2011-Ohio-660, at ¶ 21, citing Jackson, 22 Ohio St.3d at 284.
{¶21} For these reasons, we cannot conclude that that the trial court lost its way by concluding that Williams did not act in self-defense and created such a manifest miscarriage of justice that Williams‘s assault convictions must be reversed and a new trial ordered. Acсordingly, Williams‘s assignment of error is overruled.
{¶22} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr