[Cite as State v. Williams , 2019-Ohio-5381.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-19-39

v. KENT WILLIAMS, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2018 0070 Judgment Affirmed Date of Decision: December 30, 2019

APPEARANCES: 

### Andrea M. Brown for Appellant 

### Jana E. Emerick for AppelleeCase No. 1-19-39

-2- ZIMMERMAN, P.J. {¶1} Defendant-appella nt, Kent D. W illiams (“Williams ”), appeals the May 6, 2019 judgment entry of sentence of the Allen County Common P leas Court. For the reasons that follow, we affirm. {¶2} This case stems from a June 17, 2017 altercation between Willia ms and Lindsey McCoy (“McCoy”), nka Lindsey Kramer, and Tyler Dunlap ( “Dunlap”) of the Ohio Department of Rehabilitation and Correction that occur red while Williams was an inmate at Allen-Oakwood Correctional Institution (“ACI”) . As a result of the altercation, Williams was indicted on two counts of assault in violation of R.C. 2903.13(A), (C)(3), third-degree felonies. (Doc. No. 1.) On F ebruary 23, 2018, Williams appeared for arraignment and entered pleas of not guil ty. (Doc. No. 8). {¶3} After a bench trial on May 6, 2019, the trial court found Willi ams guilty of both counts in the indictment. (Doc. Nos. 82, 155); (May 6, 2019 Tr. at 64-65). On June 17, 2019, the trial court sentenced Williams to 9 month s in prison on each count, respectively, and ordered the terms to be served consecu tively, for an aggregate sentence of 18 months in prison. (Doc. No. 162). Th e trial court also ordered the prison terms to be served consecutive to a prison t erm imposed in another case. ( Id. ). {¶4} Williams filed his notice of appeal on June 21, 2019. (Doc. No . 165). He raises one assignment of error for our review.Case No. 1-19-39

-3- Assignment of Error The Trial Court’s Guilty Verdict As To Each Count Of Assault Was Not Supported By Sufficient Evidence And Was Against The Manifest Weight Of The Evidence. {¶5} In his assignment of error, Williams argues that his assault co nvictions

are based on insufficient evidence and that his convictions are against the manifest weight of the evidence. In particular, Williams argues that th e trial court lost its way in evaluating the evidence to conclude that he acted in sel f-defense. Standard of Review {¶6} Manifest “weight of the evidence and sufficiency of the evidenc e are clearly different legal concepts.” State v. Thompkins , 78 Ohio St.3d 380, 389 (1997). Thus, we address each legal concept individually. {¶7} “An appellate court’s function when reviewing the sufficiency o f the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would co nvince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if theCase No. 1-19-39

-4- evidence was sufficient, we neither resolve evidentiary conflic ts nor assess the credibility of witnesses, as both are functions reserved for th e trier of fact.” State v.

Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775 , ¶ 33, citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.”), citing Thompkins at 386. {¶8} On the other hand, in determining whether a conviction is again st the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider [ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in th e evidence, the [trier of fact] clearly lost its way and created such a manifest misca rriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discre tion on matters relating to the weight of the evidence and the credibility of the witnes ses. State v. DeHass , 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weig ht standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavil y against the conviction,’ should an appellate court overturn the trial court ’s judgment.” State v.Case No. 1-19-39

-5- Haller , 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119. Sufficiency of the Evidence {¶9} We begin by addressing the sufficiency of the evidence supporti ng Williams’s assault convictions. Williams does not dispute that the State proved the elements of assault. Rather, he argues on appeal that his assa ult convictions are unsupported by sufficient evidence because he presented suffici ent evidence that he

acted in self-defense. {¶10} Williams’s challenge to the sufficiency of the evidence as to s elfdefense is inappropriate. See State v. Vasquez , 10th Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 52. Self-defense is an affirmative defense, a nd the accused bears the burden of proving it by a preponderance of the evidence. State v. Belanger , 190 Ohio App.3d 377, 2010-Ohio-5407, ¶ 4 (3d Dist.), citing State v. Williford , 49 Ohio St.3d 247 (1990). See also R.C. 2901.05(A). “The ‘due process ‘sufficient evidence’ guarantee does not implicate affirmative defenses, be cause proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime.’” Vasquez at ¶ 52, quoting State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 37. Therefore, we need to address Williams’s self-defense argu ments only in our analysis of the manifest weight of the evidence. Id.Case No. 1-19-39

-6- Manifest Weight of the Evidence Analysis {¶11} Williams was convicted of assault in violation of R.C. 2903.13( A); however, he does not dispute that the State proved the elements of that offense. Rather, Williams argues that the trial court lost its way in co ncluding that he did not act in self-defense. Williams argues that the evidence adduced at trial demonstrated that he used force on McCoy and Dunlap in self-defense. {¶12} “‘Self-defense is an affirmative defense, which means that the burden of going forward is on the defendant who must prove each elemen t by a preponderance of the evidence.’” 1 State v. Oates , 3d Dist. Hardin No. 6-12-19, 2013-Ohio-2609, ¶ 10, quoting State v. Kimmell , 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶ 19, citing State v. Densmore , 3d Dist. Henry No. 7-08-04, 2009- Ohio-6870, ¶ 24 and R.C. 2901.05 (2008) (current version at R.C . 2901.05 (2019)). “Affirmative defenses such as self-defense ‘“do not s eek to negate any elements of the offense which the State is required to prove” b ut rather they “admit[] the facts claimed by the prosecution and then rel[y] on indepen dent facts or circumstances which the defendant claims exempt him from liabil ity.”’” Id. at ¶ 10,

1 Subsequent to the indictment in this case, R.C. 2901.05 was am ended to require the “the prosecution [to] prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person’s residence, as the case may be.” R.C. 2901.05(B)(1) (Mar. 28, 2019). We apply the version of R.C. 2901.05 in effect at the time the def endant committed the offense. See State v. Koch , 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 103 (conclud ing that the defendant was “not entitled to retroactive application of the burden shifting chan ges by the legislature to Ohio’s self-defense statute, R.C. 2901.05, as a result of H.B. 228”). See also State v. Crowe , 3d Dist. Allen No. 1-19-12, 2019- Ohio-3986, ¶ 15, fn. 1. Although the trial court applied the a mended version of the statute, the result is the same.Case No. 1-19-39

-7- quoting State v. Smith , 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 32, quoting

State v. Martin , 21 Ohio St.3d 91, 94 (1986). {¶13} “The elements of self-defense differ depending on whether the defendant used deadly or non-deadly force to defend himself.” State v. Bagley , 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 15, citing State v. Densmore , 3d Dist. Henry No. 7-08-04, 2009-Ohio-6870, ¶ 25. {¶14} To establish self-defense through the use of non-deadly force, an accused must prove: (1) the accused was not at fault in creati ng the situation giving rise to the affray, (2) the accused (even if mistaken) had a bo na fide belief that he was in imminent danger of any bodily harm; and (3) the only mea ns to protect himself from such danger was the use of force not likely to cau se death or great bodily harm. Accord State v. Vu , 10th Dist. Franklin No. 09AP-606, 2010-Ohio4019, ¶ 10; State v. Juntunen , 10th Dist. Franklin No. 09AP-1108, 2010-Ohio-5625, ¶ 21; Ohio Jury Instructions , CR Section 421.21 (Rev. Aug. 16, 2006). See In re

J.J. , 5th Dist. Licking No. 16 CA 44, 2016-Ohio-8567, ¶ 14; State v. Koch , 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 62; State. v. Jeffers , 11th Dist. Lake No. 2007-L-011, 2008-Ohio-1894, ¶ 81. See also State v. Wagner , 3d Dist. Seneca No. 13-15-18, 2015-Ohio-5183, ¶ 10. “In instances where less t han deadly force is used, the defendant need only show a fear of bodily harm, not o f death or great bodily harm.” State v. Brown , 2d Dist. Montgomery No. 27312, 2017-Ohio-7424,Case No. 1-19-39

-8- ¶ 24, citing State v. Gee , 2d Dist. Miami No. 87-CA-22, 1987 WL 20260, *2 (Nov. 17, 1987) and State v. Perez , 72 Ohio App.3d 468, 472 (10th Dist.1991). Both versions of self-defense, however, use the term “great bod ily harm”: self-defense involving deadly force uses the term to des cribe the level of harm the defendant must perceive before he or she is justified in using deadly force, while self-defense with non-de adly force uses the term to describe the level of force a defendant may not apply.

Juntunen at ¶ 23. See Jeffers at ¶ 68. Likewise, there is no duty to retreat in cases involving non-deadly force. Brown at ¶ 25, citing State v. Kucharski , 2d Dist. Montgomery No. 20815, 2005-Ohio-6541, ¶ 21, citing Perez at 472. “‘[I]f there is sufficient evidence on the issue of self-defense involving non- deadly force * * * the trial court must instruct the jury on that defense.’” Jeffers at ¶ 76, quoting State v. Griffin , 2d Dist. Montgomery No. 20681, 2005-Ohio-3698, ¶ 16, citing State v.

Ervin , 75 Ohio App.3d 275, 279 (8th Dist.1991). “If a defendant fai ls to prove any one of the elements of self-defense by a preponderance of the e vidence, he has failed to demonstrate that he acted in self-defense.” (Italics added. ) State v. Kimmel , 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶ 21, citing State v. Jackson , 22 Ohio St.3d 281, 284 (1986). When the situation involves the use of force against law enforc ement officers, a private citizen may not—in the absence of excessive or unnecessary force by an arresting officer—use force to resist a rrest by one he knows, or has good reason to believe, is an authorized p olice officer engaged in the performance of his duties, whether or no t the arrest is illegal under the circumstances.Case No. 1-19-39

-9- State v. Fritz , 2d Dist. Montgomery No. 20796, 2005-Ohio-4736, ¶ 21, citing State

v. Scimemi , 2d Dist. Clark No. 94-CA-58, 1995 WL 329031, ¶ 24 (June 2, 19 95), Columbus v. Fraley , 41 Ohio St.2d 173, (1975), paragraph three of syllabus, and State v. Wenger , 58 Ohio St.2d 336 (1979). The standard for establishing self

defense is heightened when a police officer is the victim. State v. Shepard , 11th Dist. Ashtabula No. 2003-A-0028, 2006-Ohio-4315, ¶ 31, citing State v. Grace , 9th Dist. Summit No. 16950, 1995 WL 598502, *15 (Oct. 11, 1995). {¶15} At trial, McCoy identified State’s exhibit “1,” a video recordi ng depicting the altercation. ( Id. at 9-10). McCoy testified that Williams was segregated in a restrictive-housing unit receiving limited priv ileges for rule infractions within the institution or awaiting transport to a h igher security facility. (May 6, 2019 Tr. at 8). According to McCoy, inmates in that un it receive two mandatory one-hour recreation periods. ( Id. at 10). She testified that Williams was confrontational over a disagreement with her and Dunlap regardi ng the allottedrecreational time—refusing to return to his cell after a recrea tional period. ( Id. at 12). McCoy further testified that because Williams refused to comply with the order to return to his cell, Dunlap placed his hand on Williams’s lef t elbow and said, “Come on, man, it doesn’t have to be like that.” ( Id. at 14). As a result, according to McCoy, Williams “took an aggressive stance,” and stated, “We ll, if this is how it’s going to be then I’m not locking down.” ( Id. ). Thereafter, according to McCoy,Case No. 1-19-39

-10- Williams and Dunlap exchanged punches. ( Id. at 15). McCoy testified that she attempted to alert the control center through her “man down” de vice; however, it was inoperable. ( Id. at 15). The altercation escalated and McCoy chose to assist Dunlap, rather than seek assistance. ( Id. ). McCoy testified that Williams struck her twice in the left eye, and struck Dunlap so many times that she “couldn’t even count.” ( Id. at 16). On cross-examination, McCoy testified that Dunlap did not attack Williams unjustifiably. ( Id. at 19). She also testified that the video does not show Williams’s aggressive stance. ( Id. at 25) {¶16} Williams testified in his defense that he was “upset and told [ McCoy and Dunlap he was] not locking down.” ( Id. at 34, 36, 39). However, he refuted McCoy’s claim that he took an aggressive stance. ( Id. at 36). Rather, he testified that he was tackled by all the correctional officers with Dunla p placing him in a

choke hold. 2 ( Id. at 37). Williams testified that he began hitting Dunlap with his (Dunlap’s) radio in self-defense. ( Id. at 37-38). {¶17} Williams also presented the testimony of Kenneth Hill (“Hill”) who testified that Williams refused to comply with their orders bec ause McCoy and Dunlap ended the recreational period early. ( Id. at 43-44). According to Hill, Williams refused to comply with their order, “Dunlap grabbed hi m and spun him

2 Williams does not identify which correctional officers or how many correctional officers were involved in the altercation.Case No. 1-19-39

-11- around and rabbit punched him about ten times.” ( Id. at 44). As a result, Williams said, “he didn’t have no choice but to defend himself.” ( Id. at 45). {¶18} Williams also presented the testimony of Richard Mort (“Mort”) who testified that he “didn’t really watch” the altercation between Williams and Dunlap. ( Id. at 48). He testified that after hearing the commotion, he exi ted his cell, which was on the top tier of the segregation unit, and saw “a couple of fists thrown and a walkie-talkie go sliding and mace being sprayed.” ( Id. at 49). Because Mort smelled mace and “didn’t want [to be] maced,” he returned to hi s cell. ( Id. at 48- 49). {¶19} We conclude that the trial court did not lose its way as to Wil liams’s self-defense assertion. First, Williams must show that he was not at fault for creating the situation giving rise to the affray. Here, there is no dispute that Williams was non-compliant with the orders of McCoy and Dunlap, because Williams refused the order to return to his cell. As such, Dun lap was permitted to use “less-than-deadly force” against Williams to control the si tuation. See Ohio Adm.Code 5120-9-01(2)(a)-(d) (2004) (current version at Ohio Ad m.Code 5120-9- 01(2)(a)-(d) (2019)). See also Shepard , 2006-Ohio-4315, at ¶ 31 (concluding that the heightened standard for non-deadly force self-defense appli es to correctional staff performing their duties in an institution when attempting to control an inmate). In other words, Dunlap was not the initial aggressor, and Willi ams was notCase No. 1-19-39

-12- privileged under the circumstances to resist the correctional o fficers’ orders. Ultimately, McCoy and Dunlap’s use of less-than-deadly force wa s required in

order to return Williams to his cell. {¶20} Upon our review, we conclude that the weight of the evidence su pports that Williams was at fault for creating the situation. Because the elements of selfdefense are cumulative and Williams cannot establish he was not at fault for creating the situation, Williams failed to demonstrate that he acted sel f-defense. Kimmel , 2011-Ohio-660, at ¶ 21, citing Jackson , 22 Ohio St.3d at 284. {¶21} For these reasons, we cannot conclude that that the trial court lost its way by concluding that Williams did not act in self-defense and created such a manifest miscarriage of justice that Williams’s assault convict ions must be reversed and a new trial ordered. Accordingly, Williams’s assignment of error is overruled. {¶22} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed SHAW and WILLAMOWSKI, J.J., concur. /jlr