[Cite as State v. Mendoza, 2017-Ohio-8977.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 16AP-893 

 (C.P.C. No. 16CR-1482) 

v. : 

 (REGULAR CALENDAR) 

Michael D. Mendoza, : 

 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on December 12, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie 

Swanson, for appellee. Argued: Valerie Swanson. 

On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam, 

Erik P. Henry, and David F. Hanson, for appellant. Argued: 

David F. Hanson. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This is an appeal by defendant-appellant, Michael D. Mendoza, from a 

judgment of conviction and sentence entered by the Franklin County Court of Common 

Pleas following a jury trial in which he was found guilty of felonious assault. 

{¶ 2} On March 16, 2016, appellant was indicted on one count of felonious 

assault, in violation of R.C. 2903.11, and two counts of robbery, in violation of R.C. 

2911.02. The matter came for trial before a jury beginning November 8, 2016. 

{¶ 3} Mark Walder, age 48, owns a carpet cleaning company, Hospitality Carpet 

Care, and the bulk of his business involves providing services to hotels, restaurants, and 

"hospitality-type" industries. (Tr. Vol. I at 57.) Walder's largest client, Indus Hotel 
No. 16AP-893 2 

Group, owns several hotels in the Columbus area, including the Hampton Inn, located in 

downtown Columbus at 501 North High Street. 

{¶ 4} Walder currently has two employees, and employs other workers on an asneeded basis. Walder first met appellant during summer 2015, after appellant's father, a 

friend of Walder, inquired as to whether Walder might have an employment opportunity 

for his son. Walder subsequently contacted appellant "from time to time" about 

performing work for his carpet cleaning business. (Tr. Vol. I at 64.) 

{¶ 5} On the morning of February 22, 2016, Walder woke up early and realized he 

might not have enough workers for a job site at the downtown Hampton Inn. Walder 

decided to reach out to appellant via Facebook Messenger. Walder and appellant "had a 

back and forth whether he would come to work that day" because of an issue involving 

money Walder owed appellant for 10 to 15 hours of work appellant had performed the 

previous week at a different hotel. (Tr. Vol. I at 67.) Walder had been in Florida that 

week, but had made arrangements for another employee, Anthony Miller, to pay appellant 

the money he was owed. Miller, however, had not yet provided the money to appellant. 

{¶ 6} Walder informed appellant, during the Facebook Messenger interaction, 

that if he came to work that morning "he could make some money as well as get paid for 

15 or so hours that was still owed to him." (Tr. Vol. I at 70.) According to Walder, 

appellant "didn't seem too interested in coming to work, but he * * * started to be 

somewhat argumentative about why he didn't get paid." (Tr. Vol. I at 71.) Walder and 

appellant "couldn't really come to a conclusion as to whether he was coming to work or 

not." At one point during the Facebook Messenger interaction, appellant "threatened 

violence to * * * Miller for not paying him and threatened to * * * put his ass to sleep if he 

came to work." (Tr. Vol. I at 72.) 

{¶ 7} Walder, who was concerned about a confrontation at the job site, instructed 

appellant "not to come there with a bad attitude." Walder told appellant he would 

"provide him his check or pay him later that day." Walder viewed it as a "tossup" whether 

appellant would show up for work. (Tr. Vol. I at 73.) 

{¶ 8} Walder and Miller arrived at the hotel job site that morning and began 

cleaning carpets. Around noon, after they had been working approximately three hours, 

appellant "showed up on the fifth floor demanding his money." Walder explained to 
No. 16AP-893 3 

appellant he did not have his money, and he was unable to go to the bank at that time and 

leave Miller alone at the job site, "so he'd have to wait until after the job was over." (Tr. 

Vol. I at 76.) 

{¶ 9} Appellant "then began to be very argumentative" toward Miller "because he 

thought * * * Miller was holding back the money that I had given him for whatever 

reason." (Tr. Vol. I at 76.) Appellant "started to become belligerent," and "[h]is voice 

became escalated." (Tr. Vol. I at 76-77.) 

{¶ 10} At that time, Walder asked appellant to leave the site out of concern that he 

was becoming "loud" and "would disturb the guests at the hotel." Appellant responded 

"he wanted his money." Walder told appellant he would "pay him that evening," and 

asked him to "please leave" because he did not "want to have to call security." (Tr. Vol. I 

at 77.) 

{¶ 11} Walder and Miller "started to go back to work." (Tr. Vol. I at 77.) Miller left 

the immediate area to work in one of the guest rooms. Walder testified he was near a wall 

on one side of a room and appellant was standing beside a wall on the other side of the 

room. According to Walder, appellant was never closer than ten feet away, and they were 

never "in each other's face or anything like that." (Tr. Vol. I at 79.) Once appellant's voice 

"began to be raised and [he] started to be a little bit more irritated," Walder "moved 

further away and * * * threatened to [call] security and turned [his] back." (Tr. Vol. I at 

79-80.) 

{¶ 12} Walder then heard appellant state: "I have nothing to lose." Walder "turned 

back around," at which time appellant struck him in the face, breaking his jaw. Walder 

estimated that appellant ran ten feet across the room before striking him. Walder "started 

gushing with blood." Miller "heard the impact" and looked into the room. (Tr. Vol. I at 

77.) Walder testified that appellant then reached down and took his and Miller's jackets. 

{¶ 13} After the incident, Miller accompanied Walder to the work truck and drove 

Walder to Riverside Methodist Hospital. Walder's jaw was broken in two places, and an 

artery was severed in the back of his neck. Walder underwent four hours of surgery, and 

his jaw was wired shut for six weeks. While Walder was in the hospital, appellant phoned 

him "demanding payment for his hours." (Tr. Vol. I at 95.) At trial, Walder identified 

appellant as his assailant. 
No. 16AP-893 4 

{¶ 14} Walder denied ever threatening appellant or lunging toward him during the 

incident. Walder stated that he "retreated and tried to continue to go back to work." (Tr. 

Vol. I at 82-83.) 

{¶ 15} Miller, age 26, is a manager of a bar, and during winter months he has 

worked for Walder. In his employment with Walder, Miller worked on carpet cleaning 

jobs with appellant "two or three times." (Tr. Vol. I at 108.) 

{¶ 16} A week or two prior to the incident, Miller and appellant worked together 

cleaning carpets at a hotel while Walder was out of town. After work, Miller gave 

appellant a ride home, and Miller then drove to Walder's residence to return a work truck. 

Walder had also instructed Miller to pay appellant, and Miller was going to pick up the 

money at Walder's residence "to give to [appellant] for his work." (Tr. Vol. I at 122.) 

Miller testified that he was unsuccessful in reaching appellant by phone and, therefore, 

was "unable to get in contact with him" about the money. (Tr. Vol. I at 123.) 

{¶ 17} Miller gave the following testimony regarding the events on February 22, 

2016. On that date, he and Walder were on the job site approximately four or five hours 

"cleaning all the hotel rooms on the fifth floor." (Tr. Vol. I at 125.) Miller was in a room 

cleaning carpets when he "heard loud voices in the hallway." He walked out to the 

hallway "to see what the confrontation was." The voices were getting louder, and Miller 

observed Walder "trying to calm the situation" and to "quiet [appellant] down." (Tr. Vol. I 

at 126.) 

{¶ 18} Miller testified that appellant was "frustrated, I'm not sure if this was the 

money situation or what, but just when he saw me he kind of turned toward me and 

started hollering towards me." At the time, Walder was "trying to get us both away and 

keep the area * * * quiet." (Tr. Vol. I at 128.) Walder asked Miller to return to the room 

where he had been working. 

{¶ 19} Miller "turned to head back into the room," and he "took maybe a couple 

steps and heard probably the loudest pop [he had] ever heard." Miller looked over toward 

Walder, who was "bleeding all over his hands and his jaw was sitting on his tongue inside 

of his mouth." (Tr. Vol. I at 126.) Walder was "holding his jaw and turns towards me and 

said, he just broke my jaw." (Tr. Vol. I at 131.) 
No. 16AP-893 5 

{¶ 20} Miller observed appellant backing away. As Miller assisted Walder to the 

elevator, appellant was looking around; appellant then "bends down and grabs our 

jackets." Miller testified he asked appellant for his jacket: "I was like, come on, can we 

have our jackets back? And he looked at me and said come fight [me] for them." Miller 

told appellant he was "here to work, not to fight." (Tr. Vol. I at 132.) Miller and Walder 

entered the elevator and went downstairs to the work truck; Miller then drove Walder to 

the hospital. 

{¶ 21} On February 23, 2016, Columbus Police Officer Joseph Abdalla was 

dispatched to the hospital to respond to a report of an assault. Officer Abdalla spoke with 

Walder, who had been hospitalized for approximately 24 hours. Walder had "medical 

hardware in his mouth," and he provided the officer with appellant's name. (Tr. Vol. I at 

43.) Walder also informed the officer that a co-worker, Miller, had been present during 

the incident. 

{¶ 22} Appellant, age 26, testified on his own behalf. Appellant acknowledged 

previously serving a four-year sentence for a felony burglary offense committed in 2009; 

he also acknowledged a 2014 felony conviction for receiving stolen property. 

{¶ 23} Appellant began working for Walder after appellant's father introduced 

them. At the time of the incident, appellant had been cleaning carpets for Walder on a 

part-time basis. The week prior to the incident, while Walder was out of town, appellant 

had performed some work for which he had not yet received payment. 

{¶ 24} On February 22, 2016, Walder contacted appellant via Facebook Messenger 

about a carpet cleaning job. Appellant testified that when Walder "first contacted me * * * 

I was kind of trying to find a few things out and he became real * * * belligerent and 

disrespectful towards me. And at that point I just * * * pretty much told him * * * I would 

just like to be paid and go our separate ways." (Tr. Vol. I at 170.) 

{¶ 25} Appellant stated that his intention in going to the Hampton Inn that 

morning was "[s]imply to go get paid * * * and leave." (Tr. Vol. I at 171.) Appellant 

arrived at the hotel and observed Walder's work truck and hoses. He followed the hoses 

up to the fifth floor. When he arrived, appellant observed Walder in a room performing 

work; Miller was also cleaning rooms on the floor. 
No. 16AP-893 6 

{¶ 26} Appellant told Walder he did not come there to work, and that he was only 

there to receive his paycheck. Appellant acknowledged raising his voice and getting into 

an argument with Walder. Appellant "was under the impression that [Walder] had no 

intentions of paying me." (Tr. Vol. I at 173-74.) At one point, appellant went over "to talk 

to Miller because there was an issue about me using the phone all day the previous Friday 

that me and him worked, and * * * we didn't come to any type of conclusion on that." (Tr. 

Vol. I at 174.) 

{¶ 27} Appellant was "kind of upset" and "disappointed" with Walder. (Tr. Vol. I at 

175.) Appellant also testified he was "kind of nervous, anxious I would say a little * * * 

confused" as to why Walder would call him to the site and not pay him. Appellant stated 

that Walder's "shoulder was facing me maybe roughly five feet away." According to 

appellant, Walder "turned and started walking, like, charging, not like - - kind of 

aggressively turned and charged towards me. I don't want [to] say like he lunged or tried 

to tackle me, but like in an aggressive manner and I swung and backed up and I just 

continued backing away from him." (Tr. Vol. I at 176.) 

{¶ 28} When asked what was going through his mind as Walder first approached, 

appellant responded: "I did not know what he was going to do. I was nervous about the 

situation. I mean, I was kind of scared, I wouldn't say I don't know how to defend myself, 

but I was kind of scared, like, just walking towards me." (Tr. Vol. I at 179.) Appellant 

testified that he threw the punch because "I just * * * felt unsafe, to defend myself." (Tr. 

Vol. I at 180.) 

{¶ 29} Around that time, Miller "came out of the room" he had been cleaning and 

appellant "continued backing away from them." Walder and Miller "proceeded onto the 

elevator," and appellant then "turned around and left as well." (Tr. Vol. I at 176.) 

{¶ 30} On cross-examination, appellant acknowledged that, during his Facebook 

Messenger interaction with Walder, he made a reference to Miller in which he stated: "I 

made money last week on top of the money your bitch-ass employee has owed me since 

Kentucky. You're lucky I didn't knock him out on the job because I'm really that type of 

dude, Mark. I don't know why you want to see my true colors." (Tr. Vol. I at 194.) 

Appellant also acknowledged stating about Miller: "I can get my money from him or put 
No. 16AP-893 7 

his ass to sleep." (Tr. Vol. I at 195.) Appellant denied being angry with Walder at the time 

of the incident. 

{¶ 31} Over the objection of defense counsel, plaintiff-appellee, the State of Ohio, 

recalled Walder as a rebuttal witness. Following deliberations, the jury returned verdicts 

finding appellant guilty of felonious assault, but not guilty of the robbery counts. By 

judgment entry filed December 8, 2016, the trial court imposed a sentence of five years 

incarceration, to be served concurrently with appellant's sentence in Franklin C.P. No. 

15CR-2777. 

{¶ 32} On appeal, appellant sets forth the following six assignments of error for 

this court's review: 

FIRST ASSIGNMENT OF ERROR: THE STATE'S USE OF 

PEREMPTORY CHALLENGES TO EXCUSE JURORS 

BECAUSE OF THEIR RACE VIOLATED BATSON V. 

KENTUCKY AND DEPRIVED APPELLANT EQUAL 

PROTECTION OF THE LAW. 

SECOND ASSIGNMENT OF ERROR: APPELLANT WAS 

DEPRIVED OF HIS RIGHT TO DUE PROCESS AND A FAIR 

AND IMPARTIAL JURY WHEN THE TRIAL COURT 

REFUSED TO EXCUSE FOR CAUSE A JUROR WHO 

COULD NOT BE FAIR AND IMPARTIAL. 

THIRD ASSIGNMENT OF ERROR: APPELLANT WAS 

DENIED HIS RIGHTS TO A FAIR TRIAL, TO COUNSEL, TO 

PRESENT A DEFENSE, AND TO DUE PROCESS 

CONTRARY TO THE OHIO AND UNITED STATES 

CONSTITUTIONS WHEN THE TRIAL COURT ORDERED 

APPELLANT TO WEAR RESTRAINTS WITHOUT 

ADEQUATE JUSTIFICATION. 

FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT 

ERRED AND DENIED APPELLANT DUE PROCESS AND 

HIS RIGHT TO A FAIR TRIAL BY PERMITTING THE 

STATE TO CALL THE ALLEGED VICTIM AS A REBUTTAL 

WITNESS DESPITE ALREADY TESTIFYING DURING THE 

STATE'S CASE-IN-CHIEF. 

FIFTH ASSIGNMENT OF ERROR: APPELLANT WAS 

DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS 

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS 
No. 16AP-893 8 

TO THE UNITED STATES CONSTITUTION, AND SECTION 

10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION. 

SIXTH ASSIGNMENT OF ERROR: THE TRIAL COURT 

VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND 

A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF 

CONVICTION AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS 

UNDER THE UNITED STATES AND OHIO 

CONSTITUTIONS. 

{¶ 33} Under the first assignment of error, appellant contends the trial court erred 

in rejecting defense counsel's objection to the state's use of peremptory challenges to 

excuse two African-American jurors, asserting that the state's use of the challenges was in 

violation of Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, appellant points to the 

fact that, at the conclusion of voir dire, the state used its first peremptory challenge on 

Juror No. 2, S.M., and its fourth peremptory challenge on Juror No. 1, T.C. Appellant 

maintains the evidence did not support the prosecutor's purported race-neutral 

explanations. 

{¶ 34} In State v. Murphy, 91 Ohio St.3d 516, 528 (2001), the Supreme Court of 

Ohio discussed the test under Batson for determining whether a prosecutor's use of 

peremptory challenges is racially motivated, holding in part: 

The Equal Protection Clause of the Fourteenth Amendment 

strictly prohibits a state actor from engaging in racial 

discrimination in exercising peremptory challenges. Such 

discrimination is grounds to reverse a conviction returned by 

a jury tainted with such discrimination. 

A court adjudicates a Batson claim in three steps. In step one, 

the opponent of the peremptory challenge at issue must make 

a prima facie case that the proponent was engaging in racial 

discrimination. In step two, the proponent must come 

forward with a race-neutral explanation for the strike. In step 

three, the trial court must decide, on the basis of all the 

circumstances, whether the opponent has proved racial 

discrimination. 

(Citations omitted.) 

{¶ 35} As noted, appellant challenges the state's peremptory challenges as to two 

prospective jurors, S.M. and T.C. With respect to S.M., the record indicates that, after the 
No. 16AP-893 9 

prosecutor questioned prospective jurors during voir dire, the prosecutor asked all of the 

prospective jurors whether there was "anything that we talked about or caused you 

concern that you think I might need to know before we impanel you as jurors." S.M. 

raised her hand and indicated she had such a concern, but further stated she did not 

"want to necessarily discuss it in front of everybody." (Voir Dire Tr. at 122.) 

{¶ 36} Following a recess by the trial court, S.M. was questioned outside the 

presence of the other prospective jurors. S.M. stated she had previously been "involved in 

a domestic violence issue," and she was "pretty sure" that the prosecutor "was actually on 

the case." (Voir Dire Tr. at 133.) S.M. stated to the prosecutor: "[Y]ou look familiar, but I 

can't remember." S.M. explained that she was the defendant in the domestic relations 

case, and that the case "started as a domestic violence and it was reduced to a 

misdemeanor." (Voir Dire Tr. at 134.) 

{¶ 37} The prosecutor, after obtaining information on the case outside the 

presence of S.M., indicated to the trial court that the case "was a misdemeanor case filed 

in Franklin County Municipal Court." (Voir Dire Tr. at 138.) The prosecutor represented 

that the case "was not filed as a felony or even considered for a felony enhancement so I 

would have never been the prosecutor on it." (Voir Dire Tr. at 138-39.) The prosecutor 

further stated: "She's obviously confusing me with a city prosecutor." S.M. was then 

called back, and the prosecutor informed S.M.: "I've looked up the case, it appears I was 

not the prosecutor on that" case. S.M. responded: "Okay." (Voir Dire Tr. at 139.) The 

prosecutor then asked S.M. whether there was anything about the way the prosecutor 

handled the domestic relations case that would "leave a distaste in your mouth?" S.M. 

responded: "Absolutely not, no." (Voir Dire Tr. at 141.) 

{¶ 38} The prosecutor subsequently exercised peremptory challenges as to four 

prospective jurors, including S.M and T.C. At that time, defense counsel raised a "Batson 

argument" before the trial court, noting that "[T.C.] and also [S.M.] were African 

American." (Voir Dire Tr. at 152-53.) The trial court then requested a response from the 

prosecutor, who stated the following grounds for requesting the peremptory challenges: 

[THE PROSECUTOR]: Well, Your Honor, the defense has to 

put on prima [facie] evidence before I have to put on reasons 

in response they're not [pretextual]. I don't think he's shown a 

prima [facie] case. I did excuse two female white jurors as 

well. 
No. 16AP-893 10 

But the reason why I thanked and excused [S.M.] was because 

she was the defendant in a domestic violence case. Whether 

she says she could be fair and impartial to the prosecution, 

she thought I was the prosecutor and I don't know if she's 

going to have any underlying bias against prosecutors, 

certainly she thought I was the one who prosecuted that case. 

So that's the sole reason for striking her. 

The sole reason for striking [T.C.] is because he's young 

certainly and impressionable at this time regardless of his 

race. I'm afraid that with his youth he will not have much to 

add to the deliberations. In fact, I was watching him 

throughout my voir dire and he seems to just follow along 

with the crowd in dealing with the one-witness rule in 

particular and the knowingly and purposely. I didn't get a 

good satisfaction that he was, in fact, grasping these concepts 

which I deem to be very important to my case. Thank you, 

Your Honor. 

(Voir Dire Tr. at 153-54.) 

{¶ 39} Following the prosecutor's explanation, the trial court inquired whether 

defense counsel had any further argument. Defense counsel stated: "No response, Your 

Honor." (Voir Dire Tr. at 154.) The trial court overruled the Batson challenge, stating on 

the record: "With respect to the Batson challenge regarding [T.C.] the defense did not set 

forth any evidence or any facts that would establish prima facie case of discrimination 

with respect to peremptory challenges and the state offered a [neutral] explanation for its 

exercise of its peremptory challenge to both [S.M.] as well as to [T.C.]." (Voir Dire Tr. at 

154-55.) 

{¶ 40} Thus, with respect to the state's peremptory challenge involving S.M., the 

record indicates the prosecutor expressed concern that the juror mistakenly believed the 

prosecutor had prosecuted a previous domestic relations case in which S.M. was the 

defendant; the prosecutor was also concerned that the prospective juror may have an 

"underlying bias against prosecutors" in light of that prior proceeding. As noted, defense 

counsel did not challenge the explanation. (Voir Dire Tr. at 153.) 

{¶ 41} On review, the record supports the prosecutor's explanation that S.M. was 

apparently mistaken about the prosecutor's purported involvement in a domestic 

relations case in which S.M. was the defendant. Although the prosecutor informed S.M. 
No. 16AP-893 11 

that she was mistaken, the prosecutor could have reasonably been concerned about the 

potential for bias against the prosecution in light of this prospective juror's past personal 

experience as a defendant, and we find no error with the trial court's determination that 

the prosecutor offered a race-neutral justification for the peremptory challenge. See State 

v. McElrath, 114 Ohio App.3d 516, 522 (9th Dist.1996) (prosecutor's concern that 

prospective juror "may have had a negative experience with the prosecutor's office, and 

might therefore have a bias against the prosecution," constituted a "race neutral" 

explanation). Accordingly, the trial court did not err in denying appellant's Batson

challenge as to this prospective juror. 

{¶ 42} Appellant also challenges the prosecutor's explanation for striking 

prospective juror T.C. on the basis of the juror's age (or youth). Ohio courts have held, 

however, that age is a race-neutral factor in the context of a Batson challenge. See State v. 

Robinson, 5th Dist. No. 09 CAA 03 0029, 2009-Ohio-5917, ¶ 33 ("the State offered a raceneutral explanation for its use of a peremptory challenge for this juror, stating that it had 

concerns about the juror's age, the juror being only twenty (20) years old, and how his age 

may affect his thinking in this particular case"); State v. Curtis, 3d Dist. No. 9-02-11, 

2002-Ohio-5409, ¶ 49 (prosecutor's proffered explanation that he struck juror "because 

of his young age, he was single, and his minimal ties to the community" was race neutral 

and satisfied the prosecution's burden of articulating a non-discriminatory reason for 

peremptory strike). 

{¶ 43} We note that federal courts have similarly recognized age as a "legitimate" 

reason for peremptorily striking potential jurors. United States v. Clemons, 941 F.2d 321, 

325 (5th Cir.1991). See also Howard v. Moore, 131 F.3d 399, 408 (4th Cir.1997) ("age is 

an acceptable race-neutral factor" for peremptory challenge); United States v. Williams, 

214 Fed.Appx. 935, 936 (11th Cir.2007) (trial court did not err in finding that prosecutor's 

reason for striking prospective juror because of "her youth and lack of worldly experience" 

constituted a legitimate race-neutral explanation); United States v. Alston, 188 Fed.Appx. 

186, 188 (4th Cir.2006) ("age is an acceptable race-neutral explanation"). 

{¶ 44} Here, the prosecutor offered a race-neutral explanation for the peremptory 

challenge, citing the youth of the prospective juror, and there is nothing to suggest that 

the prosecutor's explanation was pretextual. The trial court determined there was no 
No. 16AP-893 12 

indication of purposeful discrimination, and we find no basis in the record to disturb that 

determination. We therefore find no error with the trial court's decision to overrule the 

Batson challenge as to this prospective juror. 

{¶ 45} Appellant's first assignment of error is not well-taken and is overruled. 

{¶ 46} Under the second assignment of error, appellant contends the trial court 

erred in refusing to excuse a prospective juror for cause who could not be fair and 

impartial. Specifically, appellant argues the trial court should have excused prospective 

Juror No. 12, C.M., who indicated she had previously been employed in law enforcement. 

Appellant argues that answers provided by C.M. during voir dire indicated she could not 

render a verdict based on the evidence presented, thereby requiring defense counsel to 

exercise a peremptory challenge to excuse her. 

{¶ 47} By way of background, C.M. stated during voir dire that she was "a retired 

executive secretary for the State Highway Patrol and I've worked investigations so I have 

the law enforcement side." When asked by the prosecutor whether she "[w]ould * * * be 

able to set that prior experience aside in this particular case," C.M. initially responded: "I 

don't think so." (Voir Dire Tr. at 23.) When asked again by the prosecutor whether she 

would have difficulty setting aside her experience and background, C.M. stated: "I think 

what I would be looking at, taking that experience and looking at both sides, you know, 

your side, his side." (Voir Dire Tr. at 24.) Later during voir dire, the prosecutor revisited 

the issue of this prospective juror's background with the State Highway Patrol, and 

inquired of C.M. whether she could "decide this case fairly and impartially?" C.M. 

responded: "Yes." (Voir Dire Tr. at 79.) 

{¶ 48} At the close of voir dire, defense counsel requested the trial court excuse 

C.M. for cause.1 In response, the prosecutor stated: "I followed up with her at the end of 

the questioning and said, would your relationship with the Ohio State Patrol officers 

impact your ability to decide this case fairly and impartially and she said no she didn't 

think that it would." (Voir Dire Tr. at 148-49.) Defense counsel indicated he did not 

"recall hearing that she could set those aside." (Voir Dire Tr. at 149.) The prosecutor then 

reiterated that the prospective juror "did say, yes, she would be able to decide the facts of 

 

1 The trial court initially indicated it would grant the request to excuse Juror No. 12, but after the prosecutor 

noted that Juror No. 12 was "the highway patrol one," the trial court acknowledged "confusing" this juror 

with another prospective juror. (Voir Dire Tr. at 148-49.) 
No. 16AP-893 13 

the case and apply the fact[s] and apply the law." (Voir Dire Tr. at 150.) The trial court 

ruled that it would not dismiss C.M. for cause, and defense counsel subsequently utilized 

a peremptory challenge to excuse her. 

{¶ 49} R.C. 2945.25 states in part as follows: 

A person called as a juror in a criminal case may be challenged 

for the following causes: 

* * * 

(B) That he is possessed of a state of mind evincing enmity or 

bias toward the defendant or the state; but no person 

summoned as a juror shall be disqualified by reason of a 

previously formed or expressed opinion with reference to the 

guilt or innocence of the accused, if the court is satisfied, from 

examination of the juror or from other evidence, that he will 

render an impartial verdict according to the law and the 

evidence submitted to the jury at the trial. 

{¶ 50} Under Ohio law, "[a] prospective juror may be challenged for cause if there 

is a demonstration of bias toward the defendant." State v. Mulvey, 7th Dist. No. 08 BE 

31, 2009-Ohio-6756, ¶ 21, citing R.C. 2945.25(B); Crim.R. 24(C)(9). Further, "[a] trial 

court has the broad discretion to determine whether a juror has the ability to be 

impartial," and the court "may rely on the juror's testimony in order to determine that 

juror's impartiality." Id. In instances in which a prospective juror is challenged for bias, 

"a reviewing court must pay deference to the trial court, who was able to see and hear the 

prospective juror and the exchanges during voir dire." Id. Finally, "[a] trial court's ruling 

on a challenge for cause will not be disturbed by a reviewing court 'unless it is manifestly 

arbitrary and unsupported by substantial testimony, so as to constitute an abuse of 

discretion.' " Id. at ¶ 22, quoting State v. Williams, 79 Ohio St.3d 1, 8 (1997). 

{¶ 51} On review, we find no abuse of discretion by the trial court in failing to 

excuse C.M. for cause. As observed by appellant, C.M.'s initial responses to inquiries by 

the prosecutor raised questions about her ability to set aside her background and 

experience in law enforcement. However, when later questioned about whether she could 

be fair and impartial, C.M. responded affirmatively. Here, the trial court had the 

opportunity to observe and determine whether the prospective juror was sufficiently 

rehabilitated by the follow-up questioning by the prosecutor. See State v. Dye, 8th Dist. 
No. 16AP-893 14 

No. 103907, 2016-Ohio-8044, ¶ 28 ("although the juror's initial statements appeared to 

cast some doubt on her impartiality, the juror's qualification to serve as [a] fair and 

impartial juror was sufficiently rehabilitated upon the trial court's further examination"). 

Further, the trial court was entitled to accept the assurances of the prospective juror that 

she would be fair and impartial. State v. Jones, 91 Ohio St.3d 335, 338 (2001). 

{¶ 52} Appellant's second assignment of error is overruled. 

{¶ 53} Under the third assignment of error, appellant contends he was denied the 

right to a fair trial where the trial court ordered him to wear leg restraints during trial. 

Appellant argues there was no evidence he needed to be restrained, and cites the fact 

there was no hearing on the record justifying the need for restraints. According to 

appellant, the leg irons inhibited his ability to concentrate on the evidence. 

{¶ 54} In State v. Boone, 10th Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 16, this court 

noted that "[t]he usual practice * * * is for a defendant to appear in court free of shackles." 

However, "it is widely accepted that a prisoner may be shackled in some circumstances." 

Id. Further, "[t]he decision to impose such restraints is left to the sound discretion of the 

trial court, [which] must exercise its own discretion and not leave the issue up to security 

personnel." Id. 

{¶ 55} A review of the record indicates that, at the start of trial, defense counsel 

made the following inquiry to the court: "Your Honor, before we bring the jury in, I 

understand about the shackles on his ankles, but if we could remove the handcuffs from 

him, if that would be permissible?" The trial court responded: "Yes. I will ask that those 

be removed." (Tr. Vol. I at 11.) 

{¶ 56} Later, prior to appellant taking the witness stand (and outside the presence 

of jurors), defense counsel inquired as to how the trial court "wanted to proceed with his 

taking the witness stand, if [the prosecutor is] going to rest, he has leg irons on. I know 

we have to have a deputy go over there with him." The trial court responded: "What I 

would do is move him over there before you rest, like probably now, and then bring [the 

jury] in and let you rest and do the stipulation and will just let you rest and then we'll go 

from there." (Tr. Vol. I at 161.) A short time later, the trial court stated: "All right. So if 

you want to move Mr. Mendoza, come on over and just be seated, sir." (Tr. Vol. I at 164.) 

After appellant concluded his testimony, the trial court dismissed the jury for a recess and 
No. 16AP-893 15 

told appellant: "Mr. Mendoza, you can go ahead and go back to the table." (Tr. Vol. I at 

222.) 

{¶ 57} As noted, appellant contends the trial court rendered its decision to impose 

shackles without first conducting a hearing. This court, however, has previously observed 

that while "the Supreme Court of Ohio encourages trial courts to hold a hearing on the 

matter * * * the court has never required a hearing." Boone at ¶ 17. Rather, " '[w]here the 

facts and circumstances surrounding a defendant illustrate a compelling need to impose 

exceptional security procedures, the trial court's exercise of discretion in this regard 

should not be disturbed unless its actions are not supported by the evidence before it.' " 

Id., quoting State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 82. Accordingly, 

"there is no per se error because the trial court did not hold a hearing to address its 

security concerns." Id.

{¶ 58} In the present case, even assuming the trial court abused its discretion in 

ordering shackles, any such error is harmless as appellant cannot demonstrate prejudice 

where the record fails to suggest the jury observed the shackles or that the wearing of 

shackles affected the outcome of the trial. State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914. See also State v. Chester, 10th Dist. No. 08AP-1, 2008-Ohio-6679, ¶ 12 (any 

error by trial court in ordering shackles harmless where "no evidence that the jury ever 

saw appellant wearing the shackles"). As reflected in the transcript portions cited above, 

the record indicates the trial court took precautions to ensure appellant was taken to the 

witness stand outside the presence of the jury, and there is simply no evidence that any 

juror observed the leg shackles during the trial. Nor does the record on appeal suggest the 

leg shackles inhibited appellant's ability to communicate with counsel or to testify. 

Chester at ¶ 14 (noting the record was "devoid of any suggestion that the shackles 

prevented appellant from conferring with his counsel with respect to his own defense"). 

{¶ 59} Accordingly, appellant's third assignment of error is not well-taken and is 

overruled. 

{¶ 60} Under the fourth assignment of error, appellant contends the trial court 

erred in allowing the state to call the alleged victim as a rebuttal witness despite already 

having testified during the state's case-in-chief. According to appellant, Walder's rebuttal 

testimony merely repeated his previous testimony from the state's case-in-chief and did 
No. 16AP-893 16 

not offer anything new of substance, making it improper. In response, the state argues 

appellant acknowledges new information was elicited on rebuttal, and that clarifying 

details were elicited. 

{¶ 61} The record indicates that, following appellant's testimony, the prosecutor 

sought to call Walder as a rebuttal witness. Defense counsel objected on the basis that the 

state was "recalling a witness who has previously testified." The prosecutor responded: 

"Your Honor. This is rebuttal and there is some issue that came out in [appellant's] 

testimony that are directly rebutted by * * * Walder and he was not in the courtroom 

when [appellant] testified." The trial court permitted the witness to take the stand, with 

the admonition that "[t]he testimony will be limited, obviously, to rebuttal only." (Tr. Vol. 

I at 238.) 

{¶ 62} During rebuttal, questions propounded by the prosecutor to Walder 

included whether he had received any advance notice that appellant would be at the hotel, 

apart from "the kind of conversation that we've already been through." (Tr. Vol. I at 240.) 

The prosecutor also asked Walder if he ever "charge[d] towards [appellant] in a 

threatening manner." (Tr. Vol. I at 242.) In addition, the prosecutor questioned Walder 

about the phone call he received from appellant while in the hospital. When asked about 

the phone conversation, Walder testified: "I could not really speak, my mother took the 

phone and explained to him the damage that he inflicted and he still demanded money 

and she hung up." (Tr. Vol. I at 247.) 

{¶ 63} The Supreme Court has held that "[r]ebutting evidence is that given to 

explain, refute, or disprove new facts introduced into evidence by the adverse party; it 

becomes relevant only to challenge the evidence offered by the opponent, and its scope is 

limited by such evidence." State v. McNeill, 83 Ohio St.3d 438, 446 (1998). Further, "[i]t 

is within the trial court's discretion to determine what evidence is admissible as proper 

rebuttal." Id. 

{¶ 64} As noted, appellant contends Walder's rebuttal testimony simply repeated 

his previous testimony, including prior testimony by Walder that he was uncertain 

whether appellant would show up at the hotel, and the fact that Walder informed 

appellant he did not have cash to pay him at the time. Appellant contends the only new 
No. 16AP-893 17 

information involved Walder's testimony that his mother spoke to appellant on the phone 

while Walder was in the hospital. 

{¶ 65} In State v. Sandlin, 6th Dist. No. WD-83-96 (June 22, 1984), the appellant 

made a similar contention that the trial court erred in allowing the state to "repeat its case 

in chief during rebuttal" over the objection of defense counsel. In addressing this 

contention, the court in Sandlin held in part: 

Appellant correctly cites the case of Morris v. Faurot (1871), 21 

Ohio St. 155, for the proposition that the practice of recalling a 

witness to repeat previously given testimony is not proper 

rebuttal. That opinion further determines, however, that 

when, from the nature of the case, it is next to impossible to 

get to the new facts without some repetition of a witness's 

former testimony: 

"* * * [S]ome latitude must be allowed for the exercise of 

discretion. Indeed, the exigencies of each particular case must 

go far in controlling the discretion of the court * * *." Id. at 

161. 

{¶ 66} Under the facts in Sandlin, the reviewing court found it "evident" that the 

victim was recalled in order to rebut appellant's claim that appellant had acted in selfdefense in stabbing the victim. Id. The court in Sandlin determined that "[r]epetition of 

some of the victim's testimony given in the state's case in chief was, therefore, necessary 

to lay the foundation upon which rebuttal would be based." Id. 

{¶ 67} We note that other jurisdictions have similarly recognized the reality, as 

observed by the court in Sandlin, that it is "next to impossible" in certain circumstances to 

get to new facts "without some repetition of a witness's former testimony." Id., citing 

Morris v. Faurot, 21 Ohio St. 155 (1871). See, e.g., State v. Simmons, Wash.App. No. 

18020-4-III (Oct. 28, 1999) ("true rebuttal evidence will, in some degree, overlap or 

coalesce with the evidence in chief"); People v. Figgures, 451 Mich. 390, 399 (1996) ("As 

long as evidence is responsive to material presented by the defense, it is properly 

classified as rebuttal, even if it overlaps evidence admitted in the prosecutor's case in 

chief."); State v. Simonson, 100 N.M. 297, 302 (1983) (noting difficulty in "[a]scertaining 

whether the rebuttal evidence is in response to new matters established by the defense," 

and that "[f]requently true rebuttal evidence, in some degree, will overlap and coincide 

with the evidence in the State's case-in-chief"). 
No. 16AP-893 18 

{¶ 68} In the present case, while Walder's testimony included some matters 

covered during the state's case-in-chief, there was also new information presented, as well 

as clarifying information that was arguably proper rebuttal evidence following appellant's 

testimony claiming self-defense. More specifically, in response to the prosecutor's inquiry 

about the phone call at the hospital, Walder revealed for the first time that his mother 

took the call. Further, the prosecutor questioned Walder about appellant's testimony that 

Walder turned toward appellant in a threatening manner. Walder also was questioned 

about appellant's claim that Walder charged at him, and Walder responded: "I never 

moved from the position I was in from beginning to end." (Tr. Vol. I at 242.) An 

additional inquiry by the prosecutor went to the issue of whether Walder did anything to 

make appellant "feel uncomfortable or unsafe." (Tr. Vol. I at 244.) Appellant had 

previously testified that he was "nervous" and "kind of scared" by Walder's conduct. (Tr. 

Vol. I at 179.) On review, despite the fact there was some repetition in Walder's 

testimony, we do not find the trial court's admission of Walder's rebuttal testimony 

constituted an abuse of discretion. 

{¶ 69} Accordingly, appellant's fourth assignment of error is overruled. 

{¶ 70} Under the fifth assignment of error, appellant asserts he was deprived of 

effective assistance of counsel. Specifically, appellant contends his trial counsel was 

ineffective in failing to: (1) offer any argument in support of the Batson challenge, 

(2) object to, or request a hearing on, the use of leg irons, (3) object to or move to strike 

the state's rebuttal evidence, (4) object to or move to strike testimony regarding appellant 

not filing a police report, and (5) request an instruction for aggravated assault as an 

inferior degree offense of felonious assault. Finally, appellant argues that the cumulative 

effect of counsel's errors resulted in the denial of a fair trial. 

{¶ 71} The Supreme Court has adopted the two-part test set forth in Strickland v. 

Washington, 466 U.S. 668 (1984), for resolving claims of ineffective assistance of counsel. 

State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this test, "[c]ounsel's performance 

will not be deemed ineffective unless and until counsel's performance is proved to have 

fallen below an objective standard of reasonable representation and, in addition, 

prejudice arises from counsel's performance." Id. at paragraph two of the syllabus. In 

order to demonstrate prejudice, "the defendant must prove that there exists a reasonable 
No. 16AP-893 19 

probability that, were it not for counsel's errors, the result of the trial would have been 

different." Id. at paragraph three of the syllabus. 

{¶ 72} Three of appellant's claims of ineffective assistance of counsel involve issues 

raised in earlier assignments of error, i.e., defense counsel's Batson challenge, the failure 

of the trial court to hold a hearing on the use of leg irons, and the trial court's decision to 

permit rebuttal testimony. As to the Batson challenge, appellant argues that trial counsel 

was ineffective in failing to respond to the explanations provided by the prosecutor for the 

peremptory challenges. We have previously determined, however, that the trial court did 

not err in overruling defense counsel's Batson challenge and, based on the record 

presented, appellant cannot show prejudice as a result of counsel's purported failure to 

more vigorously argue the Batson challenge. 

{¶ 73} We have also determined, in addressing the third assignment of error, that 

appellant was unable to show prejudice as a result of the trial court's ruling with respect to 

the use of leg irons where the record failed to show the jury observed the shackles or that 

the court's ruling otherwise affected the outcome of the proceedings. Accordingly, 

appellant cannot demonstrate prejudice based on a claim of ineffective assistance of 

counsel with respect to counsel's failure to request a hearing on that issue. See State v. 

Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 340 (claim that counsel was ineffective by 

failing to request hearing on necessity of wearing shackles lacked merit where nothing in 

the record indicated that any restraint used was visible to jury); State v. Ayers, 12th Dist. 

No. CA2010-12-119, 2011-Ohio-4719, ¶ 61 (rejecting claim of ineffective assistance of 

counsel resulting from trial counsel's failure to object to shackles as appellant was unable 

to establish prejudice where jury was unable to see him in shackles). 

{¶ 74} We have also determined, in addressing the fourth assignment of error, that 

the trial court did not err in permitting the rebuttal testimony of Walder. Further, as 

noted under the facts, defense counsel did raise an objection to Walder being called as a 

rebuttal witness. Accordingly, appellant cannot demonstrate either deficient performance 

or prejudice. 

{¶ 75} Appellant also contends his trial counsel was ineffective in failing to object 

to the prosecutor's inquiry of Walder as to whether appellant ever filed a police report 

regarding the incident. Appellant argues that the issue of whether or not he complained 
No. 16AP-893 20 

about Walder's conduct was irrelevant as to whether he knowingly assaulted Walder. 

According to appellant, the probative value of this evidence was outweighed by the danger 

of unfair prejudice. 

{¶ 76} In response, the state argues appellant cites no authority for the proposition 

that the testimony at issue was inadmissible. The state further argues that such testimony 

was relevant, i.e., the fact appellant never filed a police report tended to discredit his claim 

he was acting in self-defense. In support, the state cites Baron v. Andolsek, 11th Dist. No. 

2003-L-005, 2004-Ohio-1159, ¶ 30 (deeming as relevant fact that parties "never 

memorialized their statement in writing nor filed a police report regarding the purported 

assault of which they were victims"). 

{¶ 77} On review, we agree with the state that appellant has failed to demonstrate 

the testimony was inadmissible as not relevant. See, e.g., State v. Lakes, 2d Dist. No. 

21490, 2007-Ohio-325, ¶ 19 (finding relevant the fact that the defendant contended he 

killed victim in self-defense, yet ran from the scene of the shooting and "never reported 

the alleged robbery to the police"); State v. Sullivan, 8th Dist. No. 66831 (Feb. 2, 1995) 

(noting that, while appellant claimed self-defense, he "never contacted the police to report 

this incident"). Here, appellant cannot show that an objection to the testimony would 

have been sustained. Moreover, the record in this case does not establish a reasonable 

probability that, had an objection been made and sustained, the result of the proceeding 

would have been different. 

{¶ 78} Appellant also claims his trial counsel was ineffective in failing to request an 

instruction for aggravated assault as an inferior degree offense of felonious assault. 

Appellant contends there was evidence of serious provocation on the part of Walder 

sufficient to allow the jury to reject felonious assault and to find him guilty of aggravated 

assault. 

{¶ 79} In response, the state argues that such an instruction was not warranted as 

appellant never admitted to being under a sudden passion or fit of rage (as required for 

aggravated assault); further, the state maintains, the request for an instruction on 

aggravated assault would have contradicted appellant's claim that he was just trying to 

defend himself, i.e., acting out of self-defense. 
No. 16AP-893 21 

{¶ 80} Under Ohio law, "a criminal defendant is entitled to an inferior-degreeoffense instruction 'when the evidence presented at trial would reasonably support both 

an acquittal on the charged [offense] and a conviction for [the inferior-degree offense].' " 

State v. Moore, 4th Dist. No. 15CA3717, 2016-Ohio-8274, ¶ 13, quoting State v. Shane, 63 

Ohio St.3d 630, 632 (1992). 

{¶ 81} As noted, appellant was convicted of felonious assault, and Ohio courts have 

recognized that the crime of aggravated assault "is an inferior degree of felonious assault." 

Id. at ¶ 16, citing State v. Deem, 40 Ohio St.3d 205, 210-11 (1988). Specifically, "[t]he two 

offenses are identical, except aggravated assault contains serious provocation as a 

mitigating factor." Id. Accordingly, "in a trial for felonious assault, a trial court must give 

the jury an aggravated assault instruction if the defendant presents sufficient evidence of 

serious provocation such that a jury could both reasonably acquit the defendant of 

felonious assault and convict the defendant of aggravated assault." Id., citing State v. 

Mack, 82 Ohio St.3d 198, 200 (1998). 

{¶ 82} Serious provocation under Ohio's aggravated assault statute (R.C. 2903.12) 

"means provocation 'reasonably sufficient to bring on extreme stress and * * * reasonably 

sufficient to incite or to arouse the defendant into using deadly force.' " State v. Saur, 

10th Dist. No. 10AP-1195, 2013-Ohio-1674, ¶ 31, quoting Deem at paragraph five of the 

syllabus. Further, "[t]he provocation must be 'sufficient to arouse the passions of an 

ordinary person beyond the power of his or her control.' " Id., quoting Shane at 635. In 

order to determine whether a defendant has presented "sufficient evidence to warrant an 

instruction on the inferior offense of aggravated assault, 'an objective standard must be 

applied to determine whether the alleged provocation is reasonably sufficient to bring on 

a sudden passion or fit of rage.' " Id., quoting Mack at 201. If the objective standard is 

met, "the inquiry shifts to a subjective standard, to determine whether the defendant in 

the particular case ' "actually was under the influence of sudden passion or in a sudden fit 

of rage." ' " Id., quoting Mack at 201, quoting Shane at 634-35. 

{¶ 83} In the present case, we agree with the state's contention that the facts of this 

case did not warrant an instruction on the inferior offense, as the evidence fails to indicate 

appellant was under a sudden passion or fit of rage. As noted under the facts, appellant 

testified as to his state of mind during the events at issue. Specifically, appellant stated he 
No. 16AP-893 22 

was "nervous about the situation," and "kind of scared." (Tr. Vol. I at 179.) Appellant, 

who denied being angry with Walder at the time of the incident, further stated he threw 

the punch because he just "felt unsafe, to defend myself." (Tr. Vol. I at 180.) Here, based 

on the record presented, appellant cannot show that a request for an instruction on the 

inferior degree offense would have been successful. See State v. Ratcliff, 10th Dist. No. 

01AP-1349, 2002-Ohio-3727, ¶ 56 (evidence insufficient for the trier of fact to find that 

appellant acted under the influence of sudden passion or fit of rage where appellant 

testified that he was "scared" and that he struck at the victim with a knife out of fear for 

his safety); State v. Poe, 4th Dist. No. 00 CA 09 (Oct. 6, 2000) ("Neither appellant's 

evidence that he was afraid because he observed the victim with a hammer in his hand 

nor his evidence that the victim stated 'come on' sufficiently demonstrates serious 

provocation."). 

{¶ 84} Furthermore, courts have held that "the failure to request an instruction on 

an offense of an inferior degree can be a matter of trial strategy." State v. Levonyak, 7th 

Dist. No. 05 MA 227, 2007-Ohio-5044, ¶ 19, citing State v. Walker, 4th Dist. No. 

99CA2494 (June 26, 2000). Specifically, "[w]hen a defendant puts on a defense of selfdefense, an instruction on the inferior degree offense could have been perceived by the 

jury as contradictory to the self-defense theory." Id. In this respect, courts have observed 

that "[i]t could confuse the jury to argue that defendant acted in fear for his life but also 

was provoked and acted in a fit of rage." Id. Accordingly, "it is a trial strategy for counsel 

to choose to go solely with the self-defense theory and not request an inferior degree 

offense," and "[t]rial strategies, even debatable ones, do not constitute ineffective 

assistance of counsel." Id. 

{¶ 85} Based on the record before this court, appellant has failed to demonstrate 

deficient performance as a result of trial counsel's decision not to request an instruction 

on the inferior degree offense. See State v. Sanders, 9th Dist. No. 19783 (May 17, 2000) 

("Since Defendant repeatedly stated that she was not mad, angry, or upset with the victim, 

but rather that she feared for her own safety, it was reasonable under the facts presented 

at trial for Defendant's counsel to pursue a self-defense trial strategy to seek an acquittal 

and not request an instruction on an inferior degree offense."). 
No. 16AP-893 23 

{¶ 86} Finally, appellant contends the cumulative effect of defense counsel's errors 

resulted in the denial of a fair trial. In order to show cumulative error, however, there 

must be a showing of multiple errors to cumulate, and "[w]here no individual, prejudicial 

error has been shown, there can be no cumulative error." State v. Jones, 2d Dist. No. 

20349, 2005-Ohio-1208, ¶ 66. 

{¶ 87} Appellant's fifth assignment of error is not well-taken and is overruled. 

{¶ 88} Under the sixth assignment of error, appellant asserts his conviction for 

felonious assault was against the manifest weight of the evidence. Appellant maintains 

the trier of fact should have found credible his testimony that Walder was the aggressor. 

{¶ 89} In considering a claim that a conviction is against the manifest weight of the 

evidence, a reviewing court "weighs the evidence and all reasonable inferences, considers 

the credibility of witnesses and determines whether 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. Martin, 20 Ohio App.3d 

172, 175 (1983). Further, "[t]he discretionary power to grant a new trial should be 

exercised only in the exceptional case in which the evidence weighs heavily against the 

conviction." Id. 

{¶ 90} R.C. 2903.11 sets forth the offense of felonious assault, and R.C. 

2903.11(A)(1) provides in part that "[n]o person shall knowingly * * * [c]ause serious 

physical harm to another." Under Ohio law, self-defense is an affirmative defense, which 

a defendant is required to prove by a preponderance of the evidence. State v. Smith, 10th 

Dist. No. 04AP-189, 2004-Ohio-6608, ¶ 16. In order to establish self-defense involving 

non-deadly force, a defendant must prove: "(1) he was not at fault in creating the situation 

that gave rise to the affray, (2) he had both reasonable grounds to believe and an honest 

belief, even if mistaken, that he was in imminent danger of bodily harm, and (3) the only 

means of protection from that danger was the use of force not likely to cause death or 

great bodily harm." State v. DiFrancesca, 10th Dist. No. 10AP-340, 2011-Ohio-3087, 

¶ 33, citing State v. McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894, ¶ 26. 

{¶ 91} On review of the record, we are unable to conclude the jury clearly lost its 

way and created a manifest miscarriage of justice in rejecting appellant's self-defense 

theory and finding him guilty of felonious assault. As noted, appellant relies on his own 
No. 16AP-893 24 

testimony that Walder was the aggressor, and that Walder was approaching him at the 

time he threw the punch that broke Walder's jaw in two places. The jury, however, was 

not required to believe appellant's version of the events, especially in light of the 

conflicting testimony. See, e.g., State v. Andrews, 9th Dist. No. 25114, 2010-Ohio-6126, 

¶ 23 (faced with conflicting evidence, jury was not required to believe appellant's version 

of events that he acted in self-defense when he inflicted injuries to victim); State v. Socha, 

8th Dist. No. 76913 (May 10, 2001) ("Although defendant's testimony supported a claim 

of self-defense, the jury was not required to accept as true his version."). 

{¶ 92} Here, the jury heard Walder's testimony that appellant came to the job site 

demanding payment for previous work he had performed. Walder testified he explained 

to appellant he did not have the money, and that appellant would have to wait until the 

end of the work day to be paid. Appellant became belligerent, and Walder asked him to 

leave to avoid disturbing guests at the hotel. According to Walder, his back was turned to 

appellant when he heard appellant state that he had "nothing to lose." When Walder 

turned back around, appellant struck Walder in the jaw, causing serious physical harm. 

{¶ 93} At trial, Miller provided corroborating testimony as to Walder's account. 

Miller testified that appellant showed up at the job site and appeared "frustrated." At one 

point, appellant "started hollering" at Miller. Miller testified that Walder was attempting 

to keep the area quiet and calm down the situation. As Miller began to return to work, he 

heard a loud "pop," and then observed Walder bleeding. The jury also heard testimony 

that appellant had threatened violence against Miller via Facebook Messenger earlier that 

day because he had not yet been paid for prior work. 

{¶ 94} On review, the jury verdict finding appellant guilty of felonious assault was 

not against the manifest weight of the evidence. Accordingly, appellant's sixth assignment 

of error is overruled. 

{¶ 95} Based on the foregoing, appellant's six assignments of error are overruled, 

and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. 

Judgment affirmed. 

SADLER and LUPER SCHUSTER, JJ., concur. 

_____________________