[Cite as State v. Shropshire , 2021-Ohio-3848.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JACKIE SHROPSHIRE Defendant-Appellant : : : : : : : : : : Appellate Case No. 29108

Trial Court Case No. CRB2002275 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 29th day of October, 2021.

. . . . . . . . . . . ERIK R. BLAINE, Atty. Reg. No. 0080726, Assistant Prosecuting A ttorney, City of Vandalia Prosecutor’s Office, 245 James E. Bohanan Memorial Dri ve, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee MARY ADELINE R. LEWIS, Atty. Reg . No. 0099711, 712 North King S treet, Xenia, Ohio 45385 Attorney for Defendant-Appellant

. . . . . . . . . . . . . WELBAUM, J. {¶ 1} Defendant-appellant, Jackie Shropshire, appeals from her convic tion in the Vandalia Municipal Court after the trial court found her guilty of one count of assault. In-2- support of her appeal, Shropshire contends that the State prese nted insufficient evidence at her bench trial to support her conviction. Shropshire also contends that her conviction was against the manifest weight of the evidence. For the reaso ns outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings {¶ 2} On November 9, 2020, Shropshire was charged by criminal complai nt with one first-degree-misdemeanor count of assault in violation of R .C. 2903.13(A). The charge stemmed from allegations that Shropshire physically atta cked the mother of her two-year-old grandson outside the mother’s Vandalia residence. Shropshire pled not guilty to the charge, and the matter proceeded to a bench trial on April 6, 2021. {¶ 3} At trial, the State presented testimony from the alleged victim (“B.J.”) and Officer Andrew Wehner of the Vandalia Police Department. The d efense presented testimony from Shropshire’s adult daughter, Taylor Shropshire. There is no dispute that Shropshire also has an adult son named JaQuan Shropshire, who i s the father of B.J.’s two-year-old son. Shropshire, therefore, is the paternal grand mother to B.J.’s son. {¶ 4} B.J. testified that on November 9, 2020, she was watching her c hildren play in the yard of her Vandalia residence when Shropshire and Taylo r pulled up in their vehicle. B.J., who was sitting in the driver’s seat of her own vehicle with the driver-side door open, testified that Shropshire approached her vehicle whi le shouting profanities

and threats at her. B.J. testified that she called 9-1-1 in re sponse to Shropshire’s conduct, but was unable to speak to the operator. B.J. testifi ed that Shropshire then physically attacked her inside her vehicle, which led to a figh t between her and-3- Shropshire. B.J. also testified that Taylor joined the fight, which gave Shropshire the opportunity to retrieve a metal car jack from the passenger sid e of B.J.’s vehicle. B.J. further testified that Shropshire began hitting her with the ca r jack shortly before the police arrived and broke up the fight. {¶ 5} When asked if she had had any prior problems with Shropshire or Taylor,

B.J. testified that she did not associate with either of them a nd that she did not start the fight. B.J. testified that JaQuan must have asked Shropshire a nd Taylor to stop by her residence, as B.J. noted that JaQuan was inside the residence a t the time Shropshire and Taylor arrived. B.J. also testified that she received medi cal treatment at the hospital for injuries she sustained during the altercation, which includ ed swelling on her head, shoulder, and back. {¶ 6} Officer Andrew Wehner of the Vandalia Police Department testifi ed that he was the officer who responded to the altercation in question. Wehner testified that the dispatcher sent him to the victim’s residence due to a 9-1-1 op en line on which females could be heard yelling in the background. Upon arriving at the scene, Wehner testified that he observed multiple people standing outside the victim’s residence in a parking lot yelling at one another. Wehner testified that he had to give m ultiple commands for the parties to cease and desist for disorderly behavior. Wehner te stified that he was able to identify Shropshire, Taylor, JaQuan, and B.J. at the scene. {¶ 7} Continuing, Wehner testified that he took statements from the i ndividuals

involved in the altercation and received different stories from each side. Wehner, however, testified that there were multiple independent witness es located at an adjacent apartment building who saw the altercation and gave statements corroborating B.J.’s-4- version of events. According to Wehner, the independent witnes ses advised that B.J. was sitting in the driver’s seat of her vehicle when Shropshire approached B.J. and started hitting her, which caused B.J. to fight back. Wehner also test ified that B.J. had fresh, visible injuries on her head and shoulder. Wehner further test ified that Shropshire’s story changed a couple of times while he was interviewing her. Based on his investigation, Wehner testified that he determined Shropshire was the primary aggressor and cited her with first-degree-misdemeanor assault. {¶ 8} Shropshire’s daughter, Taylor, testified that on the day in que stion, JaQuan called her and asked her to pick him up at B.J.’s residence. T aylor testified that she and Shropshire thereafter drove to B.J.’s residence in Shropshire’s vehicle. Taylor testified that when she and Shropshire arrived, JaQuan was outside with h is and B.J.’s son. Taylor testified that B.J. began yelling at them because Shrops hire’s vehicle did not have a car seat for her son to ride in. According to Taylor, B.J. o rdered them to get her son out of Shropshire’s vehicle. Taylor testified that B.J. starte d swinging at Shropshire when Shropshire attempted to block B.J. from getting inside her vehi cle. Taylor admitted that she then started to fight with B.J. in order to defend Shropshi re. Taylor insisted that Shropshire was not directly involved in the fight, but was tryi ng to break up the fight and protect her from B.J. Taylor also denied seeing a car jack dur ing the altercation. {¶ 9} Following this testimony, the parties made closing arguments du ring which Shropshire’s counsel argued that the evidence demonstrated that Shropshire used force against B.J. for purposes of defending herself and Taylor. Shr opshire’s counsel also argued that the State failed to meet its burden to prove that S hropshire did not act in selfdefense during the altercation. The trial court, however, dete rmined that B.J.’s testimony-5- was credible and ultimately found Shropshire guilty of assault. After reaching its verdict, the trial court sentenced Shropshire to 180 days in jail with a ll 180 days suspended on the condition that Shropshire had no contact with B.J. and comm itted no criminal violations for one year. The trial court also ordered Shropshi re to serve one year of probation and to pay a $50 fine and court costs. {¶ 10} Shropshire now appeals from her conviction, raising two assignm ents of error for review. Because Shropshire’s assignments of error ar e interrelated, we will address them together.

Assignments of Error {¶ 11} Under her first assignment of error, Shropshire contends that h er conviction for assault was not supported by sufficient evidence because th e State failed to prove beyond a reasonable doubt that the force she used against B.J. was not in self-defense. Under her second assignment of error, Shropshire contends that her conviction was against the manifest weight of the evidence because the weight of the evidence established that she was acting in self-defense during the alte rcation. We disagree with each of Shropshire’s claims. {¶ 12} “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to a llow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). “When reviewing a claim as to sufficiency o f evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to-6- the state could have found the essential elements of the crime proven beyond a reasonable doubt.” (Citations omitted.) State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). “The verd ict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact.” (Citations omitted.) Id. {¶ 13} In contrast, “[a] weight of the evidence argument challenges th e believability of the evidence and asks which of the competing inferences sugg ested by the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating whether a conviction was against the manifest weight of the evi dence, the appellate court must review the entire record, weigh the evidence and all reaso nable inferences, consider witness credibility, and determine whether, in resolving confli cts in the evidence, the trier of fact “ ‘clearly lost its way and created such a manifest mis carriage 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, 485 N.E.2d 717 (1st Dist.1983). {¶ 14} Because the trier of fact sees and hears the witnesses at trial , we must defer to the factfinder’s decisions whether, and to what extent, to c redit the testimony of particular witnesses. State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). “However, we may determine which o f several competing inferences suggested by the evidence should be preferred.” State v. Moore , 2d Dist. Montgomery No. 26304, 2016-Ohio-5267, ¶ 8, citing Lawson at *4. “The fact that the evidence is subject to different interpretations does not rende r the conviction against the manifest weight of the evidence.” State v. Adams , 2d Dist. Greene Nos. 2013-CA-61 and 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14. A judgment of conviction-7- should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175. {¶ 15} As noted above, Shropshire was convicted of first-degree-misdem eanor assault in violation of R.C. 2903.13(A). That statute prohibit s any “person [from] knowingly caus[ing] or attempt[ing] to cause physical harm to a nother or to another’s unborn.” R.C. 2903.13(A). In her appeal, Shropshire does not dispute that she assaulted B.J. on the day in question, but instead argues that the assault was the result of her defending herself and her daughter Taylor. {¶ 16} It is well established that “[t]he defense of self-defense may exonerate an

accused’s admitted use of force.” State v. Parrish , 1st Dist. Hamilton No. C-190379, 2020-Ohio-4807, ¶ 4, citing R.C. 2901.05(B)(1). Prior to March 28, 2019, self-defense

was an affirmative defense that the defendant had the burden of proving by a preponderance of the evidence. However, the enactment of 2017 Am.Sub.H.B. No. 228 realigned that burden of proof by amending R.C. 2901.05 to prov ide the following: (A) * * * The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderanc e of the evidence, for an affirmative defense other than self-defense, d efense of another, or defense of the accused’s residence presented as des cribed in division (B)(1) of this section, is upon the accused. (B)(1) A person is allowed to act in self-defense, defense of a nother, or defense of that person’s residence. If, at the trial of a p erson who is accused of an offense that involved the person’s use of force a gainst another, there is evidence presented that tends to support that the accused-8- person used the force in self-defense, defense of another, or d efense of that person’s residence, the prosecution must prove beyond a re asonable doubt that the accused person did not use the force in self-def ense, defense of another, or defense of that pers on's residence, as the case may be. {¶ 17} “Under R.C. 2901.05(B)(1) there are two burdens. The defendant has the initial burden of production, which is the burden of producing evidence ‘that tends to support’ that the defendant used the force in self-defense.” State v. Davidson-Dixon , 8th Dist. Cuyahoga No. 109557, 2021-Ohio-1485, ¶ 18, quoting State v. Petway, 2020-Ohio3848, 156 N.E.3d 467, ¶ 55 (11th Dist.), citing State v. Carney , 10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31. “The burden then shifts to the state under its burden of persuasion to prove beyond a reasonable doubt that the defen dant did not use the

force in self-defense.” Id. “To satisfy this burden, the state must disprove at least one of the elements of self-defense.” (Citation omitted.) Id .; State v. Fisk , 2d Dist. Montgomery No. 28798, 2021-Ohio-1973, ¶ 49 (Tucker, P.J., concu rring). “Thus, in order to sustain its burden of proof, ‘the state must demonstra te (1) that the defendant was at fault in creating the situation giving rise to the affra y; [or] (2) that the defendant lacked a bona fide belief that he was in imminent danger of dea th or great bodily harm * * *; or (3) that the defendant violated a duty to retreat or avoid danger.’ ” Fisk at ¶ 49, quoting State v. Smith , 8th Dist. Cuyahoga No. 109221, 2021-Ohio-1185, ¶ 21, citing State v. Thompson , 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 258. {¶ 18} In this case, B.J.’s testimony established that Shropshire was at fault in creating the physical altercation at issue. Specifically, B.J. testified that Shropshire yelled profanities and threats at her, approached her vehicle, and began striking her while-9- she was sitting in the driver’s seat. Officer Wehner’s testimo ny also established that multiple independent witnesses corroborated B.J.’s version of e vents and that Shropshire was the primary aggressor. When viewed in a light most favorab le to the State, this evidence establishes that Shropshire created the violent situat ion and thus was not acting

in self-defense. Because there is evidence in the record estab lishing that Shropshire was not acting in self-defense, Shropshire’s claim that the Sta te failed to meet its burden of proof with regard to s elf-defense lacks merit. {¶ 19} Shropshire’s manifest weight claim also lacks merit. After wei ghing all the evidence and reasonable inferences, we do not find tha t the trial court clearly lost its way and created a manifest miscarriage of justice when it found Shr opshire guilty of assault. The believability of the testimony was for the trial court to d ecide, and the trial court reasonably determined that B.J.’s testimony about the altercati on was more credible than Taylor’s. We will not disturb this finding on appeal. The fac t that the trial court believed B.J.’s testimony over Taylor’s does not mean that Shropshire’s conviction was against the manifest weight of the evidence. {¶ 20} For the foregoing reasons, Shropshire’s conviction for assault was supported by sufficient evidence and was not against the manife st weight of the evidence. Therefore, Shropshire’s first and second assignments of error a re overruled.

Conclusion {¶ 21} Having overruled both of Shropshire’s assignments of error, the judgment

of the trial court is affirmed.

. . . . . . . . . . . . .-10- DONOVAN, J. and HALL, J., concur.

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Erik R. Blaine Mary Adeline R. Lewis Hon. Cynthia M. Heck