[Cite as State v. Lipkins, 2017-Ohio-4085.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 16AP-616 

 (M.C. No. 2016 CRB 9182)

v. : 

 (REGULAR CALENDAR) 

Corey Lipkins, Jr. , : 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on June 1, 2017 

 

On brief: Richard C. Pfeiffer, Jr., City Prosecutor, 

Melanie R. Tobias, and Orly Ahroni, for appellee. Argued: 

Orly Ahroni.

On brief: Yeura Venters, Public Defender, and Timothy E. 

Pierce. Argued: Timothy E. Pierce.

 

APPEAL from the Franklin County Municipal Court 

LUPER SCHUSTER, J. 

{¶ 1} Defendant-appellant, Corey Lipkins, Jr., appeals from a judgment entry of 

the Franklin County Municipal Court finding him guilty of one count of assault and one 

count of disorderly conduct. For the following reasons, we affirm.

I. Factual and Procedural History 

{¶ 2} On April 26, 2016, plaintiff-appellee, State of Ohio, obtained an arrest 

warrant for Lipkins and charged him with one count of assault in violation of R.C. 

2903.13(A), a first-degree misdemeanor. The state additionally charged Lipkins with one 

count of disorderly conduct in violation of R.C. 2317.11(A), a fourth-degree misdemeanor. 

The charges related to an altercation Lipkins had on April 23, 2016 with the victim, 

Andrew Wells. Lipkins entered a plea of not guilty and requested a jury trial. 
No. 16AP-616 2 

{¶ 3} At the trial commencing July 25, 2016, Wells testified that he and Lipkins 

were both students at The Ohio State University, and they met in August 2015 when Wells 

moved into a five-bedroom house located at Chittenden Avenue in which Lipkins was one 

of the four other occupants. All five occupants of the house had their own bedrooms. 

{¶ 4} Wells testified that he worked as a bus driver for the Campus Area Bus 

Service. Due to "lack of finances," Wells testified he took a semester off school but that he 

had since been reactivated as a student. (Tr. at 180.) Wells said that Lipkins frequently 

disparaged and insulted him, attempting to make Wells feel inferior because Lipkins was 

an active student and Wells was only a bus driver, noting Lipkins frequently rode the bus 

that Wells drove. Because of their contentious relationship, Wells said eventually he 

stopped trying to be personable or engage with Lipkins at all. 

{¶ 5} Each of the five roommates paid $450 monthly in rent, due on the first of 

each month, and they made their payments through an online service that allowed the 

roommates to view who had paid rent, in what amount, and the date it was paid. Wells 

testified that on several occasions Lipkins did not pay his portion of the rent. On April 20, 

2016, the five roommates received a group email from their landlord stating Lipkins "has 

yet to pay [the April] rent. This is in direct violation of the lease. Please pay the balance 

along with the late fee in the next 24 hours to avoid eviction proceedings." (Tr. at 189.) 

Upon receiving the email, Wells testified he sent a group text message to all five 

roommates but directed at Lipkins, telling Lipkins plainly that he needed to pay his rent 

immediately to avoid eviction proceedings. Lipkins responded by saying he had "taken 

care of the situation" by talking to the landlord, but Wells responded that he was skeptical 

that Lipkins' account was true. (Tr. at 192.) Lipkins then responded by telling Wells he 

was not an important party and that Wells "could go F off." (Tr. at 193.) 

{¶ 6} On April 21, 2016, after the 24-hour grace period allowed by the landlord 

had passed, Wells checked the online system and discovered Lipkins still had not paid his 

rent. Wells testified he knocked on Lipkins' bedroom door repeatedly but that Lipkins 

initially ignored him. When Lipkins eventually opened his door, Wells testified that the 

two began arguing about Lipkins' nonpayment of rent. Wells testified that Lipkins told 

him to "F off" and made "a sudden movement to slam the door." (Tr. at 199.) Wells said 

he was caught off guard and the door hit him in the head, causing him to fall into Lipkins' 
No. 16AP-616 3 

bedroom, landing on his hands and knees. While he was still crouched on the ground, 

Wells said someone pulled him up by his neck and placed him in a chokehold. Wells said 

he did not know anyone else was in the room with Lipkins until that moment. Wells also 

said the chokehold was "extremely painful" and he felt as though he was having difficulty 

breathing. (Tr. at 200.)

{¶ 7} While he remained in a chokehold, Wells said Lipkins began swinging his 

fists at Wells' face. Wells said he fell backwards onto the bed, landing so that the person 

who had him in a chokehold was pinned underneath him and that Lipkins climbed on top 

of Wells and continued to punch Wells in the face. Wells said he lost consciousness at 

some point during the altercation and that the pressure around his neck caused him to 

vomit. Wells testified that Lipkins screamed profanities at him while he was attacking 

him. Using "all of [his] energy," Wells said he was able to break free from the person 

holding him to the bed and that Lipkins fell off of Wells. (Tr. at 202.) Wells said he 

immediately told Lipkins he was going to call the police but that Lipkins "ripped" the 

phone out of Wells' hand and threw it across the room. (Tr. at 204.)

{¶ 8} After retrieving his phone, Wells said he was able to use social media to 

identify the other person in the room with Lipkins as Terrance Hopewell. When he left 

Lipkins' bedroom, Wells said he realized his face was bleeding, and he used his phone to 

see bruises and abrasions on his face. His eyeglasses broke during the attack. Wells 

testified that Lipkins and Hopewell left the house because of Wells' statement that he 

intended to call the police. As soon as Lipkins and Hopewell left the house, Wells called 

the police. The police arrived a short time later and took a report of the incident. Wells 

testified he did not seek medical treatment right away for his injuries because he was 

worried about the potential cost and did not want his mother to worry about him. Two 

days after the incident, Wells said he went to the hospital because of a bad headache 

where doctors performed an MRI scan. Wells said he missed several days of work due to 

his injuries. 

{¶ 9} Wells further testified that immediately after the assault, Lipkins posted a 

video of himself on the social media site Snapchat in which Lipkins boasted about beating 

up Wells. In the video, Lipkins states "Do you remember that roommate bus driver of 

mine * * *? I just beat that motherfucker's ass. Kicked his face in. And you know me, I'm 
No. 16AP-616 4 

a teddy bear. People got to stop fucking with me though. It's just not a good idea. One 

person can only take so much." (State's Ex. E.) Wells testified he viewed the video on a 

friend's phone the day after the assault. 

{¶ 10} Hopewell also testified, stating he was in Lipkins' room on April 23, 2016 

because he was in a sexual relationship with Lipkins. Hopewell said he heard loud 

knocking on the bedroom door and he "believe[d] the door actually came open a little bit," 

either because "the lock broke or * * * it just came unhinged because of the knocking." 

(Tr. at 282.) Hopewell testified that when Lipkins answered the door, Lipkins and Wells 

began arguing about the payment of rent. According to Hopewell, when Lipkins 

attempted to close the bedroom door, Wells tackled Lipkins and the two men began to 

fight on the floor. Hopewell testified he got up from the bed and placed Wells in a 

chokehold "[i]n order to defend" Lipkins. (Tr. at 284.) Hopewell described falling 

backwards on the bed with Wells still in a chokehold, and he said both Wells and Lipkins 

were trying to hit each other. After attempting to diffuse the situation, Hopewell said he 

let Wells go and Wells got up to look for his phone. Hopewell testified that Wells and 

Lipkins continued to verbally argue until Hopewell left the house with Lipkins. On crossexamination, Hopewell estimated he had Wells restrained in a chokehold for 65 seconds. 

{¶ 11} Lipkins testified in his own defense. He stated that on April 23, 2016, he 

was in his bedroom with Hopewell when he heard a loud banging and shouting at his 

locked bedroom door. Lipkins said that as soon as he approached the door, "it came 

open." (Tr. at 325.) Lipkins testified he and Wells began arguing about the payment of 

rent and that when Lipkins tried to close the bedroom door, Wells "lunged" at him and 

tried to attack him. (Tr. at 326.) At that point, Lipkins said Hopewell restrained Wells 

and fell back onto the bed with him, and Lipkins further stated that after Wells was 

restrained, Lipkins "did try to continue to hit him." (Tr. at 327.) On cross-examination, 

Lipkins agreed he could have left the room once Hopewell had Wells restrained, but he 

decided to climb on top of Wells and hit him with his fists several times. 

{¶ 12} Lipkins also described a second fight that occurred after Hopewell released 

Wells from the bed. According to Lipkins' testimony, instead of leaving the bedroom, 

Wells charged at Lipkins again and he ended up on the floor with Wells on top of him. 

Lipkins said this caused Hopewell to restrain Wells a second time. On cross-examination, 
No. 16AP-616 5 

Lipkins agreed that neither Wells nor Hopewell described a second altercation in their 

testimony. Lipkins also denied hearing Wells say he was going to call the police. After he 

left the house, Lipkins said he stopped at a convenience store where he recorded the 

Snapchat video to "vent" about the situation with Wells. (Tr. at 332.) 

{¶ 13} At the close of evidence, the trial court instructed the jury on the assault and 

disorderly conduct charges as well as the affirmative defense of self-defense. Following 

deliberations, the jury returned guilty verdicts on both the assault and disorderly conduct 

charges. At the sentencing hearing, the trial court sentenced Lipkins only on the assault 

charge, imposing a 180-day jail sentence with 164 days suspended and 11 days of jail-time 

credit, as well as a two-year period of probation. The trial court journalized Lipkins' 

conviction and sentence in an August 31, 2016 sentencing entry. Lipkins timely appeals. 

II. Assignments of Error 

{¶ 14} Lipkins assigns the following errors for our review:

[1.] The appellant's right to a fair trial under the Sixth and 

Fourteenth Amendments of the United States Constitution 

and Article I, Sections 1, 10, and 16 of the Ohio Constitution 

was undermined and plain error occurred when inflammatory 

and unfairly prejudicial evidence was presented to the jury in 

violation of Ohio Evid.R. 401, 403(A), 404(A), 404(B), 

608(A), 608(B), and R.C. 2945.59. 

[2.] The appellant's right to a fair trial under the Sixth and 

Fourteenth Amendments of the United States Constitution 

and Article I, Sections 1, 10, and 16 of the Ohio Constitution 

was undermined when the City prosecutors misstated the law 

regarding self-defense which rose to prosecutorial 

misconduct. 

[3.] Appellant's right to a fair trial under the Sixth and 

Fourteenth Amendments of the United States Constitution 

and Article I, Sections 1, 10, and 16 of the Ohio Constitution 

was undermined and plain error occurred when the lower 

court failed to instruct the jury regarding the presumption 

under R.C. 2901.05(B)(1) and 2901.09(B) that a person acts in 

self-defense when attempting or expelling another unlawfully 

present in his residence and that the government bears the 

burden of overcoming this presumption by a preponderance 

of the evidence. 
No. 16AP-616 6 

[4.] The jury's verdict was not supported by the manifest 

weight of the evidence. 

III. First Assignment of Error – "Other Acts" and Character Evidence 

{¶ 15} In his first assignment of error, Lipkins argues the trial court erred when it 

permitted Wells to testify regarding Lipkins' alleged prior acts. Lipkins asserts the state 

offered this testimony to prove he acted in conformity with his bad character, an 

impermissible basis to admit evidence of other acts under Evid.R. 404(B).

{¶ 16} Generally, the admission or exclusion of evidence lies within the sound 

discretion of the trial court, and we will not disturb that decision absent an abuse of 

discretion. State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 16, citing State 

v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion implies that the court's 

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). 

{¶ 17} Evid.R. 404(B) states "[e]vidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in conformity 

therewith." Such evidence "may, however, be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident." Evid.R. 404(B). Lipkins points to three instances in Wells' 

testimony in which he asserts Wells offered evidence of Lipkins' alleged bad character: 

(1) Wells' assertions that Lipkins had lied to him in a text message and that Lipkins "lie[s] 

all the time" to all the roommates; (2) Wells' accusations that Lipkins "stole from" the 

other tenants and that Lipkins had committed acts of petty theft; and (3) Wells' 

description of Lipkins as a "nasty" person who routinely did not pay rent and who was 

generally unpleasant to be around. (Tr. at 192, 187, 188.) Lipkins argues the state 

impermissibly used this testimony to undermine Lipkins' credibility and to establish 

Lipkins acted in accordance with his bad character.

{¶ 18} Here, Lipkins concedes he did not object to the contested testimony at trial 

and thus has waived all but plain error. "A court recognizes plain error with the utmost 

caution, under exceptional circumstances, and only to prevent a miscarriage of justice." 

State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. 

Saleh, 10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶ 68. For an error to be "plain error" 
No. 16AP-616 7 

under Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error, meaning a 

deviation from a legal rule, (2) the error must be "plain," meaning an "obvious" defect in 

the trial proceedings, and (3) the error must have affected "substantial rights," meaning 

the error must have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 

27 (2002).

{¶ 19} The Supreme Court of Ohio has set out a three-step analysis for the 

admission of "other act" evidence: (1) whether the other act evidence is relevant under 

Evid.R. 401; (2) whether the evidence is presented to prove a permissible purpose, such as 

those listed in Evid.R. 404(B), or whether it is presented to prove the character of the 

accused to show conformity therewith; and (3) whether the danger of unfair prejudice 

under Evid.R. 403 substantially outweighs the probative value of the other act evidence. 

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20. 

{¶ 20} Lipkins fails to demonstrate any error, much less plain error, from the 

admission of these portions of Wells' testimony. As this court has previously noted, 

"relevant, intrinsic evidence related to the motive for the altercation" is "not 'other acts' 

evidence, and thus its admission is not subject to Evid.R. 404(B)." State v. Fowler, 10th 

Dist. No. 15AP-1111, 2017-Ohio-438, ¶ 21 (holding evidence that the defendant had 

previously stolen and used the victim's mother's ID was evidence intrinsic to the crime 

and thus admissible). The testimony Lipkins highlighted relates to the hostile nature of 

the relationship between Lipkins and Wells. As such, the testimony relates to Lipkins' 

motive for the altercation with Wells. Id. We additionally noted in Fowler that "other 

acts" evidence under Evid.R. 404(B) " 'may be admissible so long as the evidence is 

admitted for any proper purpose other than proving the defendant's propensity to act [in] 

conformity with a particular trait of his character.' " Id., quoting State v. Rocker, 10th 

Dist. No. 97APA10-1341 (Sept. 1, 1998). Here, as in Fowler, the state made no effort to 

prove that Lipkins was acting in conformity with the alleged past conduct of lying to and 

stealing from his roommates. Additionally, we do not agree with Lipkins that the danger 

of unfair prejudice substantially outweighs the probative value of the evidence tending to 

show the animosity between Lipkins and Wells leading up to the altercation. Thus, we 

conclude the trial court properly admitted these portions of Wells' testimony. 
No. 16AP-616 8 

{¶ 21} As Lipkins is unable to demonstrate error, let alone plain error, from the 

trial court's admission of this testimony, we overrule his first assignment of error.

IV. Second Assignment of Error – Prosecutorial Misconduct 

{¶ 22} In his second assignment of error, Lipkins argues the prosecutor made 

remarks during the closing argument amounting to prosecutorial misconduct. More 

specifically, Lipkins asserts the prosecutor twice misstated the law related to non-deadly 

force self-defense during closing arguments. 

{¶ 23} Courts afford prosecutors wide latitude in closing arguments, and 

prosecutors may draw reasonable inferences from the evidence at trial, commenting on 

those inferences during closing argument. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-

Ohio-5326, ¶ 18. The test for prosecutorial misconduct in closing arguments "is whether 

the remarks were improper and, if so, whether they prejudicially affected substantial 

rights of the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States 

v. Dorr, 636 F.2d 117 (5th Cir.1981). " '[T]he touchstone of due process analysis in cases 

of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the 

prosecutor.' " State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38, 

quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not 

grounds for reversal unless the defendant has been denied a fair trial. State v. Maurer, 15 

Ohio St.3d 239, 266 (1984). Moreover, because Lipkins did not object to the alleged 

instances of prosecutorial misconduct, Lipkins has waived all but plain error. State v. 

Daniels, 10th Dist. No. 14AP-326, 2015-Ohio-2649, ¶ 29, citing State v. Cunningham, 105 

Ohio St.3d 197, 2004-Ohio-7007, ¶ 82. Under a plain error standard, a reviewing court 

asks whether a defendant " 'would not have been convicted in the absence of the improper 

conduct.' " State v. Elson, 10th Dist. No. 13AP-554, 2014-Ohio-2498, ¶ 43, quoting Saleh

at ¶ 68.

{¶ 24} Lipkins points to two instances of alleged prosecutorial misconduct. The 

first occurred when the prosecutor stated during the closing argument that Lipkins "had 

the chance to leave the room." (Tr. at 372-73.) The second instance occurred when the 

prosecutor stated during the closing argument rebuttal:

Now, is that self-defense? If a person is in a defenseless 

position, is it reasonable to believe that you still are in 

imminent danger of bodily harm? There was no one stopping 
No. 16AP-616 9 

[Lipkins] from leaving the room. He could have easily got up 

from the door that he testified was open and left. 

(Tr. at 387.) Lipkins asserts both of these statements demonstrate the prosecutor 

"strongly impl[ied]" that Lipkins violated a duty to retreat. (Lipkins Brief at 46.) 

{¶ 25} Pursuant to R.C. 2901.09(B), "a person who lawfully is in that person's 

residence has no duty to retreat before using force in self-defense." Thus, Lipkins is 

correct that there is no duty to retreat from one's residence before using force in selfdefense. However, considering the prosecutor's statements in context, the prosecutor did 

not "strongly impl[y]" that Lipkins had violated a non-existent duty to retreat, as Lipkins 

argues. Instead, the prosecutor, through those statements, argued Lipkins did not act in 

self-defense because Lipkins used force after the threat of imminent danger had 

dissipated. The overwhelming evidence at trial was that Lipkins repeatedly punched 

Wells in the face while Wells was restrained. The remarks also seem intended to question 

Lipkins' credibility regarding the amount of danger he reasonably believed himself to be 

in. Thus, we do not find the prosecutor's statements to be improper here.

{¶ 26} Because the prosecutor's comments were not improper, they did not operate 

to render Lipkins' trial unfair. Accordingly, we overrule Lipkins' second assignment of 

error.

V. Third Assignment of Error – Jury Instructions 

{¶ 27} In his third assignment of error, Lipkins argues the trial court erred when it 

instructed the jury on self-defense. More specifically, Lipkins asserts the trial court 

should have instructed the jury on the presumption of self-defense contained in R.C. 

2901.05(B)(1) and on the no duty to retreat contained in R.C. 2901.09(B).

{¶ 28} Ordinarily, the trial court has discretion to decide to give or refuse a 

particular instruction, and an appellate court will not disturb that decision absent an 

abuse of discretion. State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶ 127. 

Here, however, the parties agree that Lipkins did not request an instruction premised on 

R.C. 2901.05(B)(1) and 2901.09(B) at trial and thus has waived all but plain error. Id. at 

¶ 99, citing State v. Cook, 65 Ohio St.3d 516, 527 (1992). 

 
No. 16AP-616 10 

 A. R.C. 2901.05(B) 

{¶ 29} First, Lipkins argues the trial court should have instructed the jury that he 

was presumed to have acted in self-defense because the altercation occurred in his 

residence. R.C. 2901.05(B), sometimes referred to as the "Castle Doctrine," provides:

(1) Subject to division (B)(2) of this section, a person is 

presumed to have acted in self defense or defense of another 

when using defensive force that is intended or likely to cause 

death or great bodily harm to another if the person against 

whom the defensive force is used is in the process of 

unlawfully and without privilege to do so entering, or has 

unlawfully and without privilege to do so entered, the 

residence or vehicle occupied by the person using the 

defensive force. 

(2) 

(a) The presumption set forth in division (B)(1) of this section 

does not apply if the person against whom the defensive force 

is used has a right to be in, or is a lawful resident of, the 

residence or vehicle. 

(Emphasis added.) R.C. 2901.05(B). The statute defines "residence" to mean "a dwelling 

in which a person resides either temporarily or permanently or is visiting as a guest." R.C. 

2901.05(D)(3). Under the plain language of the statute, then, the presumption of selfdefense would not apply here because both Lipkins and Wells had a right to be inside the 

residence. 

{¶ 30} Despite the plain language of the statute, Lipkins argues the presumption of 

self-defense nonetheless applies here because he asserts Wells tried to enter his bedroom 

without a privilege to do so and, thus, the Castle Doctrine should apply to that situation. 

Lipkins relies on this court's decision in State v. Fisher, 10th Dist. No. 95APA04-437 

(Mar. 12, 1996), for the proposition that a rented room constitutes a private residence 

entitled to the Castle Doctrine presumption. 

{¶ 31} However, Lipkins' reliance on Fisher is misplaced. In Fisher, we noted that 

a rented room in someone else's residence that is kept locked at all times constituted the 

defendant's own residence. Id. Here, the evidence indicates all five roommates had 

separate bedrooms but shared the rest of the house as common areas. Moreover, even if 

we were to agree with Lipkins that his bedroom constituted his own, private residence, we 
No. 16AP-616 11 

note that there was conflicting evidence as to whether Wells entered Lipkins' room 

without permission. While Lipkins testified that Wells entered his room without 

permission, Wells testified Lipkins opened his bedroom door and that, after a verbal 

exchange, Lipkins slammed the door on Wells, hitting Wells in the head and causing 

Wells to fall into the bedroom. Hopewell offered yet another version of events, testifying 

that the door came open while Wells was knocking. Additionally, by Lipkins' own 

testimony, Lipkins continued to attack Wells after Wells was restrained and no longer 

posed a potential threat to his safety. See State v. Clellan, 10th Dist. No. 09AP-1043, 

2010-Ohio-3841, ¶ 24-25 (where there is conflicting evidence regarding whether the 

defendant was in his vehicle at all times, the jury properly could refuse to apply the Castle 

Doctrine presumption of self-defense). Thus, Wells does not demonstrate plain error 

from the trial court not instructing the jury on the Castle Doctrine.

 B. R.C. 2901.09(B) 

{¶ 32} Lipkins next argues under this assignment of error that the trial court 

should have instructed the jury that he had no duty to retreat. As we stated in our 

resolution of Lipkins' second assignment of error, R.C. 2901.09(B) provides that a person 

inside his or her own residence has no duty to retreat before using force in self-defense. 

While we agree with Lipkins that such an instruction arguably would have been 

appropriate here, Lipkins does not demonstrate prejudice sufficient to render the 

omission of the instruction plain error.

{¶ 33} The Supreme Court has held that even where "a special instruction from the 

trial court on appellant's duty to retreat would have been appropriate to the evidence 

adduced at trial," there is no plain error from the omission of that instruction where the 

"failure to give such an instruction neither affected appellant's substantial rights nor 

contributed to his conviction." State v. Jackson, 22 Ohio St.3d 281, 285 (1986). Instead, 

where "the jury simply rejected appellant's theory of self-defense," namely, the jury 

concluded that appellant had not demonstrated the element of self-defense that required 

the appellant to prove he had a bona fide belief that he was in imminent danger of death 

or great bodily harm, the appellant is unable to demonstrate plain error from the trial 

court's failure to provide an instruction on the duty to retreat. Id. at 284-85.
No. 16AP-616 12 

{¶ 34} Here, as in Jackson, given the conflicting testimony of Wells and Lipkins, 

the jury could reasonably conclude that Lipkins did not act in self defense. As such, we 

find no plain error in the trial court's failure to provide an instruction on the duty to 

retreat. Jackson at 285; see also State v. Parks, 10th Dist. No. 11AP-98, 2011-Ohio-4056, 

¶ 26 (no plain error in trial court's failure to instruct the jury that the defendant had no 

duty to retreat from her home because the jury could have reasonably concluded from the 

evidence presented at trial that the defendant did not act in self-defense). Accordingly, we 

overrule Lipkins' third assignment of error.

VI. Fourth Assignment of Error – Manifest Weight of the Evidence 

{¶ 35} In his fourth and final assignment of error, Lipkins argues his convictions 

are against the manifest weight of the evidence. We disagree.

{¶ 36} When presented with a manifest weight argument, an appellate court 

engages in a limited weighing of the evidence to determine whether sufficient competent, 

credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201, 

2010-Ohio-4738, ¶ 32, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). "When 

a court of appeals reverses a judgment of a trial court on the basis that the verdict is 

against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and 

disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387, 

quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). Determinations of credibility and weight 

of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 

(1967), paragraph one of the syllabus. Thus, the jury may take note of the inconsistencies 

and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." 

State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 

Ohio St. 61, 67 (1964). 

{¶ 37} An appellate court considering a manifest weight challenge "may not merely 

substitute its views for that of the trier of fact, but must review the entire record, weigh 

the evidence and all reasonable inferences, consider the credibility of witnesses, and 

determine whether, in resolving conflicts in the evidence, the trier of fact 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. Harris, 10th Dist. No. 13AP-770, 2014-Ohio2501, ¶ 22, citing Thompkins at 387. Appellate courts should reverse a conviction as 
No. 16AP-616 13 

being against the manifest weight of the evidence only in the most " 'exceptional case in 

which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting 

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶ 38} Lipkins argues the jury clearly lost its way in determining he did not act in 

self-defense. Essentially, Lipkins asks this court to believe only his testimony and ignore 

the contradictory version of events contained in Wells' testimony. 

{¶ 39} Initially, we note the presence of conflicting testimony does not render a 

verdict against the manifest weight of the evidence. Raver at ¶ 21. Additionally, Lipkins' 

argument presupposes the jury found him to be a credible witness and believed his 

testimony while disbelieving Wells' version of events. However, a conviction is not 

against the manifest weight of the evidence because the trier of fact believed the state's 

version of events over the defendant's version. State v. Gale, 10th Dist. No. 05AP-708, 

2006-Ohio-1523, ¶ 19. As we noted above, the trier of fact remains free to believe "all, 

part, or none of a witness's testimony." Raver at ¶ 21.

{¶ 40} Given that Wells testified in great detail about the attack, that Lipkins 

admitted to continuing to punch Wells in the face while Wells was restrained, and that 

Lipkins posted a video to social media immediately following the attack in which he 

boasted about assaulting Wells, the jury did not clearly lose its way in discounting Lipkins' 

testimony that he acted in self-defense. In light of the evidence discussed above, as well 

as the record in its entirety, we agree with the jury's decision to discount the self-serving 

portions of Lipkins' testimony in favor of the other evidence at trial indicating Lipkins was 

the aggressor. Accordingly, Lipkins' convictions are not against the manifest weight of the 

evidence. We overrule Lipkins' fourth and final assignment of error.

VII. Disposition 

{¶ 41} Based on the foregoing reasons, the trial court did not plainly err in its 

evidentiary rulings, in determining whether there was prosecutorial misconduct, or in 

instructing the jury. Additionally, the manifest weight of the evidence supports Lipkins' 

convictions. Having overruled Lipkins' four assignments of error, we affirm the judgment 

of the Franklin County Municipal Court.

Judgment affirmed. 

KLATT and BRUNNER, JJ., concur.