[Cite as State v. Patton , 2021-Ohio-1230.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO Appellee

v. KELLY PATTON Appellant C.A. No. 19AP0028

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2018 CRC-I 000305
DECISION AND JOURNAL ENTRY Dated: April 12, 2021

CARR, Judge. {¶1} Defendant-Appellant Ke lly Patton appeals from the judgment of t he Wayne County Court of Common Pleas. T his Court affirms.
I. {¶2} On the morning of May 1, 2018, in the home they shared in Orrvi lle, Patton stabbed her long-time boyfriend, the vic tim, multiple times. Patton’s hand was also injured during the course of events. However, Patton and the victim described ver y different versions of events. There was no previous history of violence between the couple. {¶3} The victim maintained that he awoke to a pain in his neck. Whe n he felt his neck, it was wet. After he asked Patton to turn the light on, which she did not do, his forearm was cut. The victim came to discover that Patton had a serrated knife. The victim was stabbed multiple times as he was attempting to flee the residence. The victim d enied stabbing Patton. Ultimately, the victim was able to es cape and a neighbor called 911.2
{¶4} Patton presented a different ve rsion of events. She asserted t hat she awoke to a metal object being rubbed across her chest. The victim was str addling her, and she believed that he wanted her to have sex with him. She resisted and began str uggling with him. At some point, she grabbed a knife from the victim and swung it at him; howeve r, the victim was able to get the knife back. Patton felt a pain in her hand, and it went numb. She realized it was stuck to the mattress. She pulled her hand fre e, went to the bathroom, put her hand under running water, and took the knife out. She dropped the knife and wrapped her hand in a towel. A struggle ensued by the door, with the victim bloc king Patton from leaving. Ultima tely, Patton knocked the victim off balance, and they tumbled outside . Patton retreated back insid e and locked the door. {¶5} Patton was indicted on one count o f attempted murder, two count s of felonious assault, and one count of domestic violence. The matter procee ded to a jury trial in February 2019, prior to the March 28, 2019 effective date of the current versi on of R.C. 2901.05(B), which describes how self-defense is established. At the close of the State’s case, defense counsel moved for a judgment of acquittal as to the attempted murder count, w hich the trial court ultimately granted. {¶6} Following the presentation of t he defense case, the jury found Patton guilty of the remaining counts. In April 2019, defense counsel filed a motio n for leave to file a motion for new trial. Defense counsel argued th at had Patton’s trial been sch eduled for March 28, 2019 or after, she would have had the benefit of the amended version of the st atute which provides that, when “there is evidence presented t hat tends to support that the acc used person used the force in selfdefense, * * * the prosecution must prove beyond a reasonable d oubt that the accused person did not use the force in self-defense[.]” R.C. 2901.05(B)(1). The prior version required that the defendant establish the elements of self-defense by a preponder ance of the evidence. See State v.3

Williams , 9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 10. The trial court denied the motion and sentenced Patton t o an aggregate term of two years in priso n. {¶7} Patton has appealed, raising thre e assignments of error for our review.
II. ASSIGNMENT OF ERROR I
DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY HIS FAILURE TO RAISE THE ISSUE OF THE CHANGE IN LAW REGARDING SELF-DEFENSE AND ENSURING THAT [] MS. PATTON WAS ABLE TO BENEFIT FROM THE CHANGE. {¶8} Patton argues in her first assignment of error that her trial c ounsel provided ineffective assistance of counsel by failing to raise the issue of the change in R.C. 2901.05(B) and by failing to ensure that Patton was able to benefit from the c hange. From Patton’s brief, it is unclear what action she believes trial counsel should have take n on her behalf; however, we will presume that she is asserting that trial counsel should have re quested a continuance of the trial to a date on or after the effective date of the ame nded statute. {¶9} In order to prevail on a claim of ineffective assistance of cou nsel, Patton must show that “counsel’s performance fell below an objective standard of reasonableness and that prejudice arose from counsel’s performance.” State v. Reynolds , 80 Ohio St.3d 670, 674 (1998), citing Strickland v. Washington , 466 U.S. 668, 687 (1984). “The benchmark for judging any cla im of ineffectiveness must be whethe r counsel’s conduct so undermined the proper functioning of the adversarial process that the t rial cannot be relied on as havin g produced a just result.” Strickland at 686. Thus, a two-prong test is necessary to examine such cl aims. First, Patton must show that counsel’s performance was objectiv ely deficient by producing ev idence that counsel acted unreasonably. State v. Keith , 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second, Patton must demonstrate that but for counsel’s errors, there is a reasonable probability that the4

results of the trial would have been different. Keith at 534. This Court need not address both prongs of the Strickland test if the appellant fails to satisfy either prong. State v. Ray , 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10. {¶10} Debatable trial tactics do not g ive rise to a claim of ineffect ive assistance of counsel.
State v. Gannon , 9th Dist. Medina No. 19CA0053-M, 2020-Ohio-3075, ¶ 25. “As w ith other trial matters, the decision whether to request a trial continuance is debatable, and involves a strategic choice of counsel that falls with in the realm of trial strategy and tactics that will not ordinarily be disturbed on appeal.” (Intern al quotations and citations omitt ed.) State v. Wynn , 2d Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 90; see also In re A.M. , 9th Dist. Lorain No. 19CA011492, 2020-Ohio-3138, ¶ 28, citing Wynn at ¶ 90. Thus, Patton cannot demonstrate that her trial counsel’s failure to re quest a continuance of the tri al amounted to ineffective assistance of counsel. Notably, whether th e continuance would have been g ranted, and, even if it had been, whether the trial court would ha ve provided an instruction base d upon the new statute is pure speculation. Compare State v. Brown , 9th Dist. Wayne No. 19AP0004, 2020-Ohio-529, ¶ 23 (concluding that, when the offe nse at issue occurred prior to M arch 28, 2019, former R.C. 2901.05(A) applied, and it was the de fendant’s burden to prove, by a preponderance of the evidence, that he acted either in self-defense or in defense of others) with Williams at ¶ 4, 10-32 (applying the new statute to conduct that occurred prior to the effective date when the parties acquiesced to doing so). {¶11} Accordingly, given the foregoing, as well as Patton’s limited a rgument on appeal, we conclude that she has failed to demonstrate that trial couns el’s performance was deficient. Thus, Patton has not demonstrated that she received ineffective assistance of trial counsel. See Ray at ¶ 10.5
{¶12} Patton’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO DISMISS THE CASE DUE TO THE SUFFICIENCY OF THE EVIDENCE. ASSIGNMENT OF ERROR III
THE JURY’S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶13} Patton argues in her second assign ment of error that the trial court erred in failing to dismiss all of the counts pursu ant to Crim.R. 29(A) as there was insufficient evidence presented to support them because the victim’s testimony lacked credibili ty. Patton argues in her third assignment of error that the jury’s verdicts were against the m anifest weight of the evidence. Essentially, Patton asserts that the victim’s version of events was not believable. Patton does not appear to challenge any specific element of any of the offenses or argue that the weight of the evidence favors that Patton acted in self-defense. Our analysi s will be limited accordingly. Because both assignments of error actually challenge the weight of the evidence, they will be addressed together. See State v. McCormick , 9th Dist. Summit No. 29121, 2019-Ohio-2204, ¶ 20 (“[T]he question of sufficiency does not concern itself with th e resolution of evide ntiary conflicts or credibility dete rminations.”). In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of witnesse s and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered. State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). {¶14} “When a court of appeals reverses a judgment of a trial court o n the basis that the verdict is against the weight of the evidence, the appellate co urt sits as a ‘thirteenth juror’ and6 disagrees with the fact[-]finder’s resolution of the conflictin g testimony.” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340. {¶15} As mentioned above, the victim a nd Patton provided vastly diffe ring accounts of the events. Given those differences, credibility determination s would have been particularly important in this matter. {¶16} The victim met Patton at their m utual place of employment and t he two began a relationship. They lived togethe r for approximately eight year s before the assault at issue. The couple had no history of violen ce. At the time of the assault, they were living together on McGill Street in Orrville and Patton’s unemployment benefits were abou t to run out. Patton also had a life insurance policy for both herself and the victim that she paid the bill for. The policy was for $100,000.00 and Patton was the beneficiary on the policy. {¶17} In April 2018, the victim made arrangements with a friend to bu y a house in Wooster for the victim and Patton. That house needed work done , so the victim would frequently go over and work on the house. The victim expected Patton to m ove into the house with him, but Patton testified that she planned to find her own place. Aroun d the time of the assault, Patton had asked the victim for help with payi ng some debts she owed; howe ver, the victim i ndicated he was unable to help because he had already taken out a loan against his 401K to pay off some of her other debts. Patton had also made a statement that she owed th e IRS $10,000.00; however, Patton denied that she owed t he IRS any money. {¶18} According to the victim, on April 30, 2018, the victim got home from work around 6:00 a.m., took a nap, and then went over to do some work on th e house in Wooster. He stayed7 there until around 9:00 p.m. before heading home to Orrville. The victim noticed that the TV was not on in the living room, where Patton usually slept. However , Patton was on the daybed in the living room. He went and took a shower, got something to eat, and then went to his room upstairs to watch TV. After midnigh t, the victim fell asleep. {¶19} He awoke in the night to his back hurting. He shifted around a nd noticed that Patton was in bed with him, which was unusual. The victim dozed off a nd awoke when he felt pain in his neck. He coughed and gagged. He thought maybe Patton had turned over and hit him in the throat. He felt his neck and it felt wet. He asked Patton to turn the light on, telling her that he thought she might have cut him with her ring, and he wanted to see how bad it was. Patton said something about a nightmare and i ndicated she would turn a ligh t on. She then told the victim that she would look and see how bad the cut was. The victim was the n cut on his forearm. The victim could not see Patton and kept ask ing her to turn the light on. Patton did not turn the light on. {¶20} As the victim was sliding out of bed towards the doorway, he he ard Patton make an “oomph” sound and he was cut through his fingertip. The vic tim fled the bedroom and headed for the stairs. When he was on the first or second one, he hea rd Patton say that someone was in the house. She sounded panicked. It was light enough that the victim could see, and he told her there was not anyone in the house but them. Patton approached the banister and the victim reached up and grabbed Patton’ s hands, they struggled a bit, and the vi ctim felt the serration of a blade. The victim shoved Patt on against a wall a nd proceeded down the stairs. {¶21} As he was trying to unlock the door, he felt a sharp pain below his shoulder blade and then another sharp pain near his butt. Patton ended up aga inst the front door. The victim grabbed her, threw her across th e room, and was able to make hi s way out the door. Patton followed him outside and kept telling him to come back inside s o she could help him. Patton8 followed the victim into the grass but then went back into the house. The victim did not notice Patton bleeding. {¶22} The victim was going to head towards the gas station but was ge tting really cold and could feel blood pouring dow n his back. The victim noticed cars going by and so went into the middle of the road. He was clothed but did not have shoes on. The victim wore regular clothes to bed because he liked to be r eady to go when he woke up. {¶23} Around 5:40 a.m., a man was on his way to work when he noticed the victim wandering barefoot in the roa d. Concerned, the man called 911. The victim proceeded to the porch of a nearby house and rang the doorbell. A woman came to the door and saw the victim, who was holding his neck, bleeding, and asking for help. The w oman described the victim as appearing panicked. The woman also called 911. {¶24} Police and paramedics arrived. The victim informed police that Patton was still inside the residence. The victim was transported to a hospital for treatment of his injuries. He required stitches to his neck, the area below the shoulder blad e, and near his butt. {¶25} The victim acknowledged that his statement to police was somewh at different than his testimony; the victim did not inform the police of all the injuries that he testified to. In addition, the victim’s testimony about where in the house his injuries oc curred was sometimes different than what he told police. The victim explained that he only recalle d the details later and that these statements were taken while he was still in the hospital. {¶26} Officer Ryan Mace with the Orrville Police Department was dispa tched to the scene. He found the victim on the porch on Park Street. The v ictim appeared shocked and confused. He was holding his n eck and had several lacerations on his body. The victim then shared his version of eve nts with the officer.9
{¶27} Officer Mace proceeded to the v ictim’s and Patton’s home. At t rial, a portion of Officer Mace’s body camera video detailing his meeting with Pat ton was played; however, it was not admitted as an exhibit. Thus, it is not available for our consideration. Patton answered the door holding a towel covered in blood. She was very emotional. When she was asked to drop the towel, police discovered that she was bleeding from her hand. Patton asked police if they got “him” and told police that the v ictim left the house with a kni fe. Officer Mace then went back to see if the victim had a knife, but no knife was found on his pe rson. Additionally, no knife was found outside. Patton informed police that no one else was in the house. Because suspected blood stains were found throughout the house, the Ohio Bureau of Crim inal Investigation was brought in to process the crime scene. A serrated knife was found in t he upstairs bathroom and a kitchen knife was found on the fl oor in a bedroom. {¶28} When Officer Mace questioned the victim at the hospital, he den ied stabbing Patton. After speaking with the victim at the hospital, Office r Mace went to where Patton was being treated to speak with her. Officer Mace described Patton as being very forgetful and unable to really put the events in chronological order. A portion of Officer Mace’s body camera video from his interview with Patton at the hospital was also played at trial. This video was also not admitted at an exhibit and so is al so not available for this Co urt’s review. {¶29} Sergeant Cory Seiler reported that he interviewed Patton at the police station and that she also provided a written statement. Patton gave confus ing accounts of the events, despite appearing very calm. Even when a sked to describe her relations hip with the victim she said both that the victim was upset that they were probably going to brea k up and that they had never discussed separating. She had difficulty putting the events in chronological order and indicated that she did not remember a lot of things. She stated multiple times that she had memory issues.10 She told police that the altercation began in the victim’s bedr oom while they were both in bed. Patton awoke to a metal object being rubbed across her chest. Patton told police that the victim wanted to have sex and Patton wa s resistant. She pushed the vi ctim against the wall and the two struggled. She was not sure a bout when she obtained the knife or if or where she stabbed the victim. Patton initially did not remember where she was when s he was stabbed in the hand and later indicated that it occurred while she was in bed. She the n ran into the bathroom and pulled the knife out and wrapped her hand in a towel. Ultimately, the struggle proceeded downstairs. Patton told police that the victim was like a hockey player blo cking the door. At one point, the victim became unbalanced and she was able to get him out of the house. Patton then locked the door. {¶30} After talking with both the vi ctim and Patton, Sergeant Seiler found the victim to be very consistent and Patton to be inconsistent; thus, he conc luded that Patton was a suspect in the assault. {¶31} Samuel Troyer, a forensic scientist with the forensic biology a nd DNA sections of the Ohio Bureau of Criminal Inve stigation, testified about the evidence that was analyzed from the crime scene. Four blood stains w ere identified on the serrated knife: one on the handle, one near the hinge, one along the bac k ridge, and one on the blade. In addition, a swab was taken from the unstained portion of the handle of the serrated knife. The DNA from three of the stains was consistent with the DNA standard from Patton. The victim was e xcluded as a contributor to those samples. The fourth stain, from the blade of the serrated knif e was a mixture that included DNA consistent with both Patton’s a nd the victim’s. Patton’s DNA w as consistent with the major profile found on the unstained portion of the handle; while male DNA wa s present in that sample, it was present at too low of a level for comparison purposes.11
{¶32} Blood stains were also found on the kitchen knife. The first w as near the tip of the blade and the second was near the middle of the blade. The uns tained handle was also swabbed. Patton’s DNA was consistent with the DNA recovered from both st ains found on the kitchen knife and the victim was excluded as a contributor to those stains. The handle of the kitchen knife contained a mixture that was c onsistent with both Patton’s and the victim’s DNA profile. Finally, a piece of the mattress with bl ood staining on it was also test ed. Patton’s DNA was consistent with that of the major contribut or of the sample and the victim ’s DNA was consistent with that of the minor contributor of the sample. {¶33} Blood stains from various areas of the house contained DNA with a profile consistent with that of Patton; the victim was excluded from be ing a contributor to those samples. {¶34} Patton also testified in her defense. She testified that she h ad told the victim that she was not moving with him to the new house and maintained she had been packing totes in preparation for her move. She asserted she was going to look f or employment, stay with a relative, and relocate to somewhere near the new job. {¶35} On April 30, 2018, Patton planned to go to her mom’s house over night because her mom had a doctor’s appointment the next day. However, she did not go that night because the victim asked her to stay. Patton testified that she went to be d after the victim. She fell asleep in the victim’s bed and woke up when she felt something metal goin g across her chest. The victim was straddling her, and she thought he wanted to have sex. Pat ton yelled at the victim to get off her, but the victim became more aggressive. The victim was yel ling and the two began to struggle. Patton was afraid of the victim because he had never acted like that before. At one point, Patton managed to get the knife and started swinging it. The victim w as able to get the knife back and Patton felt a pain in her hand, and it went numb. She realized it was stuck to the mattress. She12 pulled her hand free and saw the victim in the doorway. When s he looked again, he was gone. Patton went to the bathroom and put her hand under running wate r and took the knife out. She dropped the knife and wrappe d her hand in a towel. {¶36} Patton went towards the steps and saw the victim on the stairs. The victim then pushed Patton. The victim went down the stairs and Patton did not follow. She hoped the victim was going to leave. Patton then went downstairs, and the victi m came up behind her and threw her across the room. The victim was standing in front of the d oor blocking it. Eventually, Patton was able to knock the victim off balance and they tumbled outsi de. Patton hurried back inside and locked the door. She began looking for her phone but could not find it because it was dark. Patton rinsed her hand again in the kitc hen sink and rewrapped it. Pa tton then went int o the basement to flip the breakers. When she did so, the lights came on. Patto n saw the victim outside and then saw flashing lights from poli ce cars. Patton did not go meet t he police because she was afraid the victim was still out there. Patton asserted that she was able to remember events better at the time of trial. Patton required two surgeries on her hand and it sti ll was not completely normal at the time of trial. {¶37} On appeal, Patton merely argues that the victim’s version of ev ents was incredible, thereby challenging the jury’s credibility determinations. See App.R. 16(A)(7). However, “it is well-settled law that the trier of fact is in the best position to make credibility determinations when evaluating the evidence presented at trial.” State v. Norris , 9th Dist. Summit No. 27630, 2016- Ohio-1526, ¶18. The jury was ab le to observe the victim and Pa tton testify, and presumably was able to view body camera video of Patton’s encounters with poli ce. Moreover, the jury heard officer testimony that Patton’s statements to police were often confusing and inconsistent leading Patton to become a suspect. After a thorough and independent r eview of the record, we cannot13 say that the jury lost its way in finding the victim’s testimon y more credible than Patton’s. Patton has not demonstrated that the jury ’s verdicts were against the manifest weight of the evidence. {¶38} Patton’s second and third assignme nts of error are overruled.
III. {¶39} Patton’s assignments of error ar e overruled. The judgment of t he Wayne County Court of Common Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment i nto execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT14
CALLAHAN, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: DAVID V. GEDROCK, Attorney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.