[Cite as State v. Lewis, 2012-Ohio-4815.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97864

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

DESMOND A. LEWIS

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-552831 

 BEFORE: Blackmon, A.J., Celebrezze, J., and Sweeney, J. 

 RELEASED AND JOURNALIZED: October 18, 2012 
ATTORNEY FOR APPELLANT 

Alek El-Kamhawy 

14837 Detroit Avenue, #227 

Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Mark J. Mahoney 

Assistant County Prosecutor 

9th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, A.J.: 

{¶1} Appellant Desmond A. Lewis (“Lewis”) appeals his conviction for 

felonious assault and assigns the following two errors for our review: 

I. The trial court erred in finding this appellant guilty without legally 

sufficient evidence and against the manifest weight of evidence 

presented at trial. 

II. The trial court erred to appellant’s prejudice in its jury 

instructions on self-defense and the duty to retreat when this appellant 

was immobilized by the assailant. 

{¶2} Having reviewed the record and pertinent law, we affirm Lewis’s 

conviction. The apposite facts follow. 

{¶3} The Cuyahoga County Grand Jury indicted Lewis on one count of felonious 

assault. Lewis entered a plea of not guilty, and a jury trial was conducted. 

Trial

{¶4} After an evening of drinking at several bars, Lewis and several other people 

went to the home of Jamal Davidson to continue drinking. At around 4:00 a.m., Lewis 

and the victim, Keith Brown, got into a verbal argument, which turned physical. 

{¶5} At one point, Lewis and Brown were physically separated by other 

partygoers; however, Lewis continued to engage Brown. The altercation culminated in 

Lewis biting off the top part of Brown’s left ear. Lewis did not deny that he bit Brown’s 

ear, but contended that Brown was the aggressor and that he acted in self-defense. 
{¶6} Based on the evidence presented, the jury found Lewis guilty of felonious 

assault. The trial court sentenced him to one year of community control sanctions and 

ordered Lewis to pay $12,346.05 for the medical expenses related to the victim’s injury. 

Sufficiency of the Evidence and Manifest Weight

{¶7} In his first assigned error, Lewis argues his conviction for felonious assault 

was not supported by sufficient evidence and was against the manifest weight of the 

evidence because he acted in self-defense. 

{¶8} This court has concluded that in reviewing a self-defense claim on appeal, 

we use the manifest weight of the evidence standard. 

[W]hen reviewing a claim by a defendant that evidence supports his 

claim of self-defense, the manifest weight standard is the proper 

standard of review because a defendant claiming self-defense does not 

seek to negate an element of the offense charged but rather seeks to 

relieve himself from culpability. State v. Dykas, 185 Ohio App.3d 763, 

2010-Ohio-359, 925 N.E.2d 685 (8th Dist.), citing Cleveland v. Williams, 

8th Dist. No. 81369, 2003-Ohio-31, ¶ 10. See also State v. Wilson, 8th 

Dist. No. 97350, 2012-Ohio-1952. 

{¶9} In the instant case, Lewis does not deny that he bit off the top of Brown’s 

ear; therefore, we need not address whether the elements of felonious assault have been 

proven. Instead, he argues he is not guilty because he acted in self-defense. Thus, we 

will review Lewis’s argument using the manifest weight of the evidence standard. 

{¶10} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 

 the Ohio Supreme Court addressed the standard of review for a criminal manifest weight 

challenge, as follows: 

The criminal manifest-weight-of-the-evidence standard was explained 

in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678 
N.E.2d 541. In Thompkins, the court distinguished between sufficiency 

of the evidence and manifest weight of the evidence, finding that these 

concepts differ both qualitatively and quantitatively. Id. at 386, 678 

N.E.2d 541. The court held that sufficiency of the evidence is a test of 

adequacy as to whether the evidence is legally sufficient to support a 

verdict as a matter of law, but weight of the evidence addresses the 

evidence’s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In 

other words, a reviewing court asks whose evidence is more persuasive 

— the state’s or the defendant’s? We went on to hold that although 

there may be sufficient evidence to support a judgment, it could 

nevertheless be against the manifest weight of the evidence. Id. at 387, 

678 N.E.2d 541. “When a court of appeals reverses a judgment of a 

trial court on the basis that the verdict is against the weight of the 

evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees 

with the factfinder’s resolution of the conflicting testimony.” Id. at 387, 

678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 

2211, 72 L.Ed.2d 652.

{¶11} An appellate court may not merely substitute its view for that of the jury, 

but must find that “in resolving conflicts in the evidence, the jury 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 
N.E.2d 541. Accordingly, reversal on manifest weight grounds is reserved for “the 

exceptional case in which the evidence weighs heavily against the conviction.” Id.

{¶12} To establish self-defense, Lewis must demonstrate by a preponderance of 

the evidence that (1) he was not at fault in creating the situation giving rise to the affray; 

(2) he had a bona fide belief that he was in imminent danger of great bodily harm and that 

his only means of escape from such danger was in the use of such force; and (3) he must 

not have violated any duty to retreat or avoid danger. State v. Williford, 49 Ohio St.3d 

247, 551 N.E.2d 1279 (1990). See also State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 

755 (1979), paragraph two of the syllabus. The elements of self-defense are cumulative 

and, if the defendant failed to prove any one of the elements by a preponderance of the 

evidence, he failed to demonstrate that he acted in self-defense. Williford.

{¶13} Lewis argues that Brown was at fault for creating the situation because 

Brown admitted to throwing the first punch. However, Brown testified that he punched 

Lewis in response to Lewis pushing him into the wall. Lewis also argues that Brown 

was not credible because he failed to tell the investigating officer that he threw the first 

punch, failed to provide the officer the names of witnesses, and failed to tell the officer 

that he was intoxicated at the time of the fight. The jury was aware of this inconsistency 

between Brown’s testimony and his statement to police. Thus, it was within their 

discretion to determine if Brown was credible nonetheless. 

{¶14} Moreover, in addition to Brown’s testimony, the state presented the 

testimony of several witnesses who testified that both men were initially equally 
aggressive, but that at one point, the men were separated and Lewis continued to 

aggressively pursue Brown. 

{¶15} Both Jamal Davidson and Michael Metz testified that near the end of the 

fight, they were able to separate Lewis and Brown, and that while Brown was on the front 

porch, Lewis broke free from the people restraining him and punched Brown. At that 

point, both men struggled with each other and ended up rolling on the floor. According 

to Davidson, Metz, and Brown, Brown ended up on top of Lewis, and Brown was bitten 

as Metz was holding Brown’s arms in an attempt to pull him off of Lewis. 

{¶16} Lewis presented a different version of facts. His witness, Eric Farrow, 

testified that it appeared to him that Brown was more aggressive than Lewis and that 

Brown continued to punch Lewis until he was bitten. Lewis testified that he felt the only 

way he could get Brown to stop punching him was to bite him. 

{¶17} Thus, the jury was presented with two versions of what occurred. Lewis 

testified that Brown was the aggressor and would not stop attacking him until he bit his 

ear. Brown contends that prior to being bitten, he was trying to leave and Lewis pursued 

him onto the front porch to continue the fight. Brown also contended that Lewis bit him 

when he was defenseless because Lewis bit him when Metz was pulling him by both of 

his arms off of Lewis. 

{¶18} When there are two conflicting versions of events, neither of which is 

unbelievable, it is not our province to choose which one should be believed. State v. 

Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). Rather, we defer to 

the jury who was best able to weigh the evidence and judge the credibility of witnesses by 
viewing the demeanor, voice inflections, and gestures of the witnesses testifying.

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1994); State v. 

DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). Therefore, we defer to the jury 

regarding the credibility of the witnesses. They obviously believed Brown and the state’s 

witnesses’ version of events. Accordingly, Lewis’s first assigned error is overruled. 

Jury Instructions

{¶19} In his second assigned error, Lewis argues that the trial court erred by 

instructing the jury regarding a defendant’s duty to retreat because he was not the 

aggressor. 

{¶20} We note that Lewis failed to object to the trial court’s instruction regarding 

the duty to retreat; therefore, he has waived all errors except plain error regarding the 

instructions. Crim.R. 52(B). Plain error as to jury instructions is proven when the 

outcome of the trial would have been different but for the alleged error. State v. 

Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 339. We conclude plain error 

did not occur. 

{¶21} As we stated above, while Lewis contended he was not the aggressor, the 

state presented evidence that Lewis initiated the physical fight by pushing Brown into the 

wall. He also followed Brown out onto the front porch when they had been separated to 

continue the physical assault. There was also evidence that he bit Brown’s ear while 

Brown was in the midst of being pulled off of him. Therefore, there was evidence that 

Lewis was in fact the aggressor. Based on this evidence, plain error did not occur by the 
trial court instructing the jury regarding the duty to retreat. Accordingly, Lewis’s second 

assigned error is overruled. 

{¶22} Judgment is affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. The defendant’s conviction having been affirmed, any bail pending appeal is 

terminated. Case remanded to the trial court for execution of sentence 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

JAMES J. SWEENEY, J., CONCUR