[Cite as State v. Brown , 2020-Ohio-529.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO Appellee

v. EDWARD BROWN Appellant C.A. No. 19AP0004

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2018 CRC-I 000049

DECISION AND JOURNAL ENTRY Dated: February 18, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, Edward Brown, appeal s from his felonious assault con viction in the Wayne County Court of Co mmon Pleas. We affirm.

I. {¶2} Mr. Brown and his long-time girlfriend (“H.H.”) live at a house in West Salem, Ohio. The couple also have a grown daughter (“A.B.”) who had n ot been living with them. About one or two months before Christmas of 2017, however, Mr. Brown invited A.B. and her boyfriend (“M.M.”) to live at t he West Salem ho me, instead of c ontinuing to live out of their cars and in motels during the cold winter. {¶3} Although two sharply conflicting stories were presented at tria l as to the series of

unfortunate events that unfolded at the home during Christmas t hat year, the parties agree that heated arguments between Mr. Brown and M.M. on the night of Chr istmas Eve led to both A.B. and M.M. being asked to pack up their belongings and leave the home the next morning. While2

A.B. and M.M. were in the process of packing and loading up the ir car, Mr. Brown and M.M. engaged each other in more arguing and yelling. Mr. Brown had a knife on his person and M.M. soon picked up a large furniture clamp during their verbal alte rcation. A.B. and H.H. both intervened at different times, but Mr. Brown ultimately stabbed M.M. in the back shoulder with

his knife. A.B. and M.M. left the house and called 9-1-1. {¶4} Mr. Brown was arrested and charged with felonious assault, a fe lony of the second degree. He was convicted after a jury trial, and trial court sentenced him to three years in prison. {¶5} Mr. Brown now appeals from his conviction and raises one assign ment of error

for this Court’s review.

II.

ASSIGNMENT OF ERROR

MR. BROWN’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶6} In his sole assignment of error, Mr. Brown argues that his felo nious assault conviction is against the manifest weight of the evidence, as t he jury lost its way when it rejected

his affirmative defenses that he acted in self-defense and/or i n defense of others. We disagree. {¶7} This Court has stated: In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of witn esses and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the basis that it was against the ma nifest weight of the evidence, an appellate court sits as a3

‘thirteenth juror,’ and disagrees with the factfinder’s resolut ion of the conflicting testimony.”

State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This d iscretionary power “should be exercised only in the exceptional case in whic h the evidence weighs heavily against the conviction.” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340. {¶8} Mr. Brown was convicted of felonious assault, under R.C. 2903.1 1(A)(2), which states: “No person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon * * *.” “A person acts knowingly , regardless of purpose, when the person is aware that the person’s conduct will probably cau se a certain result or will probably be of a certain nature.” R.C. 2901.22(B). Physical harm to a person is “any injury, illness, or other physiological impairment, regardless of its gravity or du ration.” R.C. 2901.01(A)(3). A “deadly weapon” is “any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, o r used as a weapon.” R.C. 2923.11(A). A knife, for example, constitutes a “deadly weapon ” if it is possessed, carried, or used as a weapon. State v. Horne , 9th Dist. Summit No. 24348, 2009-Ohio-841, ¶ 10.

M.M. and A.B.’s Version of Events {¶9} M.M. and A.B. testified similarly as to their recollection of t he events in this case. M.M. testified that the couple m oved in with A.B.’s parents abo ut a month before Christmas in

2017. He testified that he was dr inking scotch and playing vid eo games for several hours on Christmas Eve while A.B. was away at work. A little after midn ight, he heard incessant, vulgar screaming and yelling coming from the other bedroom. He heard Mr. Brown yelling, “F you” repeatedly at the top of his lungs. M.M. then heard a loud ban g, like something hitting a wall,4

followed by “an eerie dead silence.” He called A.B. and asked if he should do anything, but she told him to stay out of it. {¶10} M.M. testified that, around thirty minutes later, he went downs tairs to the kitchen and heard more screaming from Mr. Brown along with more banging sounds. M.M. yelled upstairs, asking what was going on and if everything was okay. Mr. Brown yelled down, “[M]ind your own frickin, F-ing, business,” which upset M.M. W hen M.M. said he was talking to H.H., and not Mr. Brown, it became a shouting match between all three individuals. M.M. testified that he was just trying to figure out if everyone was okay, but it escalated into Mr. Brown calling him a “f*****g pun[k]” and a “little b***h.” He testified that, at some point, a vacuum cleaner or Shop-Vac was “ hurled down the steps” at him a nd crashed into the wall on the staircase landing. M.M. testified that he then became “ver bally combative” at this point and started calling Mr. Brown names. According to M.M., each man b egan challenging the other to either come upstairs or come downs tairs to fight the other. M. M. testified that Mr. Brown descended partway down the stai rs with a six-inch, serrated kni fe in his hand, so M.M. went up

another staircase to his ow n bedroom and spoke to A.B. again on the phone. {¶11} While on the phone with A.B., M.M. could hear Mr. Brown in the other room yelling, “I’m going to kill this M-Fer, * * * taking advantage of me * * *.” A.B. also testified and confirmed multiple phone calls from M.M. that night. Durin g the third call, she could hear “a lot of yelling” from both of her parents in the background. A.B. could hear H.H. attempting to be a “mediator,” but by yelling at both men in a very crazy, loud, and boisterous manner. She could also hear who she believed was Mr. Brown, although she co uld not make out what he was saying. M.M. testified that he was concerned about falling asl eep that night. The couple spoke on the phone for one-to-two hours, a nd M.M. eventually fell asl eep.5

{¶12} A.B. testified that she arrived home from work the next morning , and H.H. told her they had to leave. M.M. testified that A.B. woke him up an d informed him that they had to leave, and that the sheriff’s department would respond if they refused. The couple began packing up, with A.B. bringing items downstairs from their bedr oom and M.M. loading them

into their car. A.B. testified that she could hear Mr. Brown i n the other room “getting upset” and starting to speak louder. M.M. also spoke to his own mother on the phone and secured a place for the couple to stay. {¶13} According to M.M., when he came back inside after that phone ca ll, Mr. Brown was standing five-to-six feet from the front door with his hand on his knife, although it was still in its leather sheath on his belt. More words were exchanged b etween the two men, and M.M. told Mr. Brown to back away with the knife because they were le aving. A.B. testified that M.M. said he was not comfortable carrying things outside if Mr. Brow n was going to stand there trying to intimidate him. She testified that M.M. was asking Mr. Brow n to move, but Mr. Brown was instead making “childish” comments like, “[T]his is my house” a nd “I can stand here.” M.M. testified that Mr. Brown was shaking and smiling, his eyes look ed “a bit wild,” and he appeared “[u]nhinged.” He testified that Mr. Brown was mumbling, but so on became more coherent and he was basically saying, “[Y]eah, M-Fer you’re going to leave.” According to M.M., Mr. Brown then moved closer to the door and kept making threats to goad h im, such as, “You better leave or I’m going to hurt you * * * F-ing piece of s**t.” {¶14} M.M. testified that he felt in danger at that point, so he bega n verbally responding back to Mr. Brown in a combative way, attacking him personally as a father, as a man, and as a drug addict. However, he testif ied that he never made a move o r advanced toward Mr. Brown, nor did he ever make any physical contact with, or put his hand s on, Mr. Brown. M.M. testified6

that A.B. was present for the argument and H.H. came downstairs shouting at them to leave while telling M.M. to calm down. M.M. offered to fight Mr. Bro wn if he would drop the knife. Mr. Brown instead approached M.M. and became more combative wit h the knife in his hand. Both M.M. and A.B. testified that Mr. Brown said, “I’m going to end you.” M.M. testified that he picked up a big, heavy furniture clamp off the ground and to ok a combative stance to defend himself. H.H. stepped in between the two men, grabbed the clam p from M.M., and told him he was not going to break her stuff. A.B. also testified that H.H . grabbed the clamp, and M.M. let go of it. M.M. testified that he said, “screw it” at this poin t, and decided to leave. {¶15} According to M.M., he turned around and took “maybe two steps” toward his suitcase when Mr. Brown ran up behind him and stabbed him in th e back shoulder with the

knife. He testified that it was “basically instantaneous.” A. B. testified that M.M. turned around to leave and she saw Mr. Brown “go around [H.H.] and raise his arm back[,] and that’s as quick as it happened.” She saw Mr. Brown then move back a few paces, and M.M. said he had been stabbed. M.M. testified that he was going to attack Mr. Brown at this point, but A.B. jumped in between the two men and said if Mr. Brown was going to go after M.M. he would have to go through his own daughter. A.B. also testified that she got in between the two men and admitted to “screaming like a lunatic” because the situation was insane. A.B. testified that at no point did she ever advance toward anyone in an aggressive manner. {¶16} M.M. testified that he called 9- 1-1 and went outside with A.B. According to M.M., Mr. Brown came outside when he heard the sirens and conti nued taunting M.M., calling him a “snitching a** little b***h” for calling the police. A.B . testified that Mr. Brown emerged from the house with the knife before the “squad” arrived and wa s very loud, taunting M.M. with statements such as: “[L]et’s fini sh this. I’m going to finish this * * *.”7

Mr. Brown and H.H.’s Version of Events {¶17} Mr. Brown and H.H. both testified at trial somewhat similarly t o each other, but presented a very different versi on of events than that offered by M.M. and A.B. The couple testified that they were both in their upstairs bedroom on Chri stmas Eve “joking around” by loudly saying “F you” to each other following a television comm ercial for an expensive car, which H.H. teased Mr. Brown he could buy for her for Christmas. H.H. testified that there was no loud bang, as M.M. claimed dur ing his testimony. However, s he was shown her handwritten statement to police on cross-examination, and admitted that she wrote “some stuff fell in the

closet and made a hell of a ban g.” H.H. testified that she onl y wrote about the loud bang because she was upset she would likely be losing her daughter over this incident. The couple testified that M.M. soon yelled from downstairs and asked if everything w as alright, and H.H. replied that everything was alright. According to Mr. Brown, M.M. then dema nded an apology from him “for hurting his feelings” and said Mr. Brown was going to apol ogize either before or after M.M. “whooped [his] a**.” H.H. testifie d that M.M. said he was owed an apology because Mr. Brown had disturbed his evening, but then said he was going to “kick [Mr. Brown’s] a**” instead of accepting any apology. H.H. tes tified that she went downstairs to calm M.M. down, and “[s]omehow the vacuum sweeper got knocked down [the stairs].” She went downstairs three or four times to try to calm M.M. down, but he instead physically knocked her down twice. H.H. admitted on cross-examination, howev er, that she did not includ e anything in her written statement to police that M.M. had shoved her down. Mr. Brown t estified that he shut the door to the landing at the bottom of the steps, but M.M. “flung it back open against the wall” and

demanded a confrontation with him. Mr. Brown testified that he responded by asking M.M. to “please stop.”8

{¶18} M.M. then ascended the other se t of stairs in the house and, ac cording to Mr. Brown, began hitting and trying to shove open another door to a bathroom which separated the two upstairs bedrooms. H.H. unl ocked the door and tried to tal k to M.M., but Mr. Brown testified that M.M. shoved her down multiple times. He further testified that, at H.H.’s behest, he did nothing in response to these assaults. According to him , M.M. continued to shove H.H. around and threaten the couple for the next three hours. Mr. B rown testified that M.M. said, “[T]wo pieces of s**t like [you] disappear ain’t nobody going t o care” and then further claimed

he would kill Mr. Brown if he either kicked M.M. out of the hou se or called the police. M.M. also said he “wouldn’t be happy unless he killed [Mr. Brown] or forced [Mr. Brown] to kill him” because “[M.M.’s] life was shit and he didn’t care.” Mr. Brown and H.H. both testified that this continued for a few hours until M.M. finally passed out and the y heard him snoring. Mr. Brown admitted on cross-examination that, when he provided a written statement to the police, he failed to mention M.M. ever shoving H.H. down. He testified that he l eft certain things out of his

written statement because he ran out of paper and the officer w as “pissed off” he had already used three pages instead of one. {¶19} Mr. Brown testified that he sat on a bench and guarded the stai rs to his bedroom all night with his military knife while H.H. slept, as they wer e both scared for their lives. The next morning, the couple asked A.B. to get M.M. out of the hous e or they would call the sheriff’s department. After a couple of hours, when the house seemed qui et, the couple believed A.B. and M.M. were finally gone. Mr. Brown went downstairs to check if they were gone and to get a drink. He testified that, throug h the kitchen window, he saw M .M. outside looking directly at him while talking on his phone. Mr. Brown attempted to go back upstairs, but M.M. “busted through the front door and was coming straight at [him].” H.H. testified that she looked out of9

the upstairs bedroom window and c ould see M.M. outside, near th e kitchen window, looking down at his phone. According to her, M.M. looked up and she sa w “his eyes get real big” and he “all [of a] sudden [took] off to come running back into the hou se.” Mr. Brown testified that he pulled out his knife, and M.M. “skidded to a halt,” backed up a bout six feet, and kept taunting Mr. Brown. M.M. called Mr. Brown a coward and said, “Drop that weapon and I’m going to kill you with my bare hands like I promised you.” {¶20} The couple testified that H.H. soon came downstairs, and M.M. p icked up a large furniture clamp. According to Mr. Brown, M.M. then said he was “going to finish killing [Mr. Brown’s] b***h a** like he promised” and came toward him. H.H. jumped in between the two men and started wrestling or struggling with M.M. for possessio n of the clamp. H.H. testified that it was her clamp and she did not want “this kind of [b.s.] in [her] house.” According to Mr. Brown, M.M. was crazy and psychotic, and he began “driving the clamp into [H.H.’s] eye in her temple area” and “tried to smash her in the face.” H.H. also t estified that “[she] knew it was going to get planted either in [her] eyeball or in [her] temple .” According to H.H., M.M. had a violent look in his eyes and was smiling with a “sick grin like yeah, you’re going to pay for this now[,]” as if he wanted to hurt he r and “liked the idea.” Mr. Brown testified that his only choice was to react quickly and stab M.M. in the shoulder with his kni fe to stop him. The couple testified that M.M. then used A.B. as a shield while continuing to taunt Mr. Brown. H.H. admitted on cross-examination, howev er, that she did not includ e this fact in her written statement because “it got forgotten” and the officer was “in a hurry” for her to finish her statement. Mr. Brown testified that while M.M. was holding A.B ., he was urging Mr. Brown to

stab A.B. as well.10

{¶21} A.B. and M.M. soon left the house and called 9-1-1. Mr. Brown initially testified that he did not say anything else to M.M. after stabbing him, b ut he admitted on crossexamination⸺after being shown a deputy’s body cam video⸺that he can be heard yelling something to M.M. as the deput y arrives at the scene.

Self-Defense and Defense of Others {¶22} Mr. Brown claimed self-defense and defense of others at trial, and now argues that the jury lost its way in rej ecting these affirmative defen ses. {¶23} Self-defense is an affirmative defense that, if proved, relieve s a defendant of criminal liability for the force that he used. State v. Cornwell , 9th Dist. Wayne No. 14AP0017, 2015-Ohio-4617, ¶ 19. Similarly, “[p]ursuant to the defense of others doctrine, a person has a privilege to defend family members to the same extent he is ent itled to protect himself.” State v.

Skinner , 9th Dist. Lorain No. 06CA009023, 2007-Ohio-5601, ¶ 20. We fi rst note that because the offense in this matter occurred prior to March 28, 2019, fo rmer R.C. 2901.05(A) applied at the time of Mr. Brown’s trial, and it was therefore his burden to prove, by a preponderance of the evidence, that he acted either in self-defense or in defense of others. See State v. Tyler , 9th Dist. Summit No. 29225, 2019-Ohio-4661, ¶ 46. {¶24} To establish self-defense or defense of others, Mr. Brown had t o prove the following elements: (1) that [he] was not at fault in creating the situation giving rise to the affray; (2) that [he] had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) that [he] did not violate any duty to retre at or avoid the danger.

State v. Barnes , 94 Ohio St.3d 21, 24 (2002). The proper standard for determi ning whether a defendant has successfully raised an affirmative defense under R.C. 2901.05 is to inquire whether the defendant has introduced sufficient evidence, which , if believed, would raise a11

question in the minds of reasonable jurors concerning the exist ence of such issue. Skinner at ¶ 18; State v. Melchior , 56 Ohio St.2d 15 (1978), paragraph one of the syllabus. The elements of self-defense are cumulative, and if the defendant fails to prov e any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense or in

defense of others. Cornwell at ¶ 19. {¶25} As to the first element, Mr. Brown argues that neither he nor H .H. were at fault in creating the situation that gave rise to the affray. He argues that M.M.’s behavior built tension between the two men and, consequently, Mr. Brown feared for bot h his safety and for the safety of H.H. He further claims he was “not acting aggressively” on Christmas Day, but was instead “simply watching” A.B. and M.M. pack up their belongings. M.M. , on the other hand, became responsible for the affray when he “[s]uddenly * * * burst insi de the home, grabbed the furniture clamp, and charged straight toward Mr. Brown.” M.M. also attem pted to strike H.H. with the clamp when she tried to intervene. {¶26} As to the second element, Mr. Bro wn argues that he had both an objective, reasonable belief of imminent danger as well as a subjective, h onest belief that both he and H.H. were in danger of imminent harm. He contends that M.M. verball y harassed and threatened him and showed signs of physical aggression toward Mr. Brown and H. H. Mr. Brown relies on police officer testimony that M.M. “had a penchant for violent behavior” as well as M.M.’s own testimony that he had a “checkered past” to assert that it was objectively reasonable for Mr. Brown to believe both he and H.H. were in imminent danger when the man charging toward them with a furniture clamp had a “violent history” and had bee n recently aggressive and threatening. He argues that st abbing M.M. was the only way to stop the attack.12

{¶27} As to the third element, Mr. Brown argues, and the State conced es, that he had no duty to retreat while lawfully in his own home. See R.C. 2901.09(B) (codifying the castle doctrine and stating “a person w ho lawfully is in that person’s residence has no duty to retreat before using force in self-defe nse [or] defense of another * * *.”). {¶28} With respect to the first two elements of his affirmative defen ses, however, conflicting testimony was presented as to whether Mr. Brown was the initial aggressor and

whether he had a bona fide belie f that either he or H.H. were i n such imminent danger as to necessitate the stabbing of M.M. with a knife. “‘[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.’” State v. Haydon , 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28, quoting State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Thus, when faced with two subst antially different stories from four different people as to how the stabbing incident actually occurred, the jury was not required

to believe Mr. Brown and H.H.’s version of events. See State v. Andrews , 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 23. {¶29} The jury’s role was, in part, to determine and assess Mr. Brown and H.H.’s credibility. The State presented evidence at trial calling the couple’s credibility into question. Mr. Brown and H.H. were both que stioned on cross-examination as to why several facts they

testified to at trial were never included in their written stat ements to police. For example, H.H.

wrote in her statement that some stuff fell in the closet and m ade a “hell of a bang,” yet she

testified at trial that there was no loud bang. The couple als o testified that M.M. had knocked H.H. down on multiple occasions on Christmas Eve, yet they both neglected to mention these physical assaults in their written statements to police. H.H. also testified that M.M. used A.B. as a shield while continuing to taunt Mr. Brown, yet this fact was left out of her wr itten statement as13

well. The jury was best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use those observations in weighing the c redibility of the proffered testimony. See State v. Cook , 9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30. The jury

chose to believe M.M. and A.B.’s version of events in this matt er, and this Court has consistently held that “[w]e will not overturn a conviction as being against the manifest weight of the evidence simply because the trier of fact chose to believe the State’s version of events over

another version.” State v. Fry , 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13. {¶30} Having reviewed the entire rec ord, this Court cannot conclude t hat the jury lost its way when it rejected Mr. Brown’s claims of self-defense and def ense of others. In light of the evidence presented at trial, the jury could have reasonably con cluded that Mr. Brown was either the initial aggressor or was at least not without fault in crea ting the confrontation when he rapidly approached M.M. and stabbed him in the back. See Andrews at ¶ 28. The jury could have also reasonably concluded that M.M. did not attempt to phy sically attack either Mr. Brown or H.H. and, therefore, Mr. Brown did not have a bona fide beli ef that either he or H.H. was in “imminent danger of deat h or great bodily harm.” See id. {¶31} Accordingly, after reviewing the entire record, weighing the ev idence and all reasonable inferences, and considering the credibility of witne sses, we cannot say that the jury, in resolving any conflicts in the evidence, clearly lost its wa y and created a manifest miscarriage of justice. See Otten at 340. Mr. Brown has also not demonstrated how this is an ex ceptional case where the evidence presented weighs heavily in his favor a nd against conviction. See Thompkins at 387. {¶32} Mr. Brown’s sole assignment of error is overruled.14

III. {¶33} Mr. Brown’s sole assignment of error is overruled. The judgmen t of the Wayne County Court of Comm on Pleas is affirmed. Judgment affirmed.

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

THOMAS A. TE ODOSIO FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.15

APPEARANCES: CHRISTOPHER S. COLERIDGE, Atto rney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.