[Cite as State v. Westfall,

.]

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

STATE OF OHIO C.A. No. 10CA009825

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CHRISTIAN JAMES WESTFALL COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 09CR078884

DECISION AND JOURNAL ENTRY

Dated: September 30, 2011

BELFANCE, Presiding Judge.

{¶1} Appellant, Christian Westfall, appeals his conviction from the Lorain County

Court of Common Pleas. This Court affirms.

I.

{¶2} On the evening of May 11, 2008, Mr. Westfall was playing basketball with

friends at the Homewood School in Lorain. Jeremy Gunter, the victim, arrived at the court with

three acquaintances just prior to midnight. Mr. Westfall and one of his friends stopped playing

basketball and approached the four that had just arrived. Mr. Westfall recognized Mr. Gunter

and began to confront him. Mr. Gunter indicated to police that Mr. Westfall had confronted him

about money and was rifling through his pockets looking for money. At some point during the

confrontation, Mr. Westfall struck Mr. Gunter on the left side of his face. Mr. Gunter was driven

home. When he arrived, his aunt called an ambulance, and he was taken first to Elyria Memorial 2

Hospital and then to Metro Health Medical Center. Due to the blow from Mr. Westfall, Mr.

Gunter suffered a fractured jaw and lost two teeth.

{¶3} In July 2009, Mr. Westfall was indicted on one count of aggravated robbery in

violation of R.C. 2911.01(A)(3), a first-degree felony, and one count of felonious assault in

violation of R.C. 2903.11(A)(1), a second-degree felony. Mr. Westfall waived his right to a jury

trial, and the matter proceeded to a bench trial in November 2009. The State orally dismissed the

aggravated burglary charge against Mr. Westfall and proceeded solely on the felonious assault

charge. At the conclusion of the State’s evidence, Mr. Westfall made a Crim.R. 29 motion to

acquit. The trial court denied the motion. Mr. Westfall renewed his Crim.R. 29 motion at the

end of his own case and again at the sentencing hearing. The trial court denied both motions.

The judge rendered a verdict of guilty. The court subsequently imposed a sentence of three years

probation, a $250 fine, and $2,772 in restitution to be paid to Mr. Gunter.

{¶4} Mr. Westfall now appeals, presenting two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

“APPELLANT’S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN THE CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

{¶5} Mr. Westfall asserts in his first assignment of error that the trial court erred in

denying his Crim.R. 29 motion because the State failed to prove the elements of felonious

assault. Thus, Mr. Westfall challenges the sufficiency of the evidence.

{¶6} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at 3

¶18, citing State v. Thompkins (1997),

. The relevant inquiry is whether

the prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins,

(Cook, J., concurring). In reviewing the evidence,

we do not evaluate credibility and we make all reasonable inferences in favor of the State. State

v. Jenks (1991),

, 273. The State's evidence is sufficient if it allows the trier of

fact to reasonably conclude that the essential elements of the crime were proven beyond a

reasonable doubt.

{¶7} R.C. 2903.11(A)(1), the statute prohibiting felonious assault, provides that “[n]o

person shall knowingly * * * [c]ause serious physical harm to another[.]” Under R.C.

2901.21(A), “a person is not guilty of an offense unless * * * [t]he person’s liability is based on

conduct that includes * * * a voluntary act” and “[t]he person has the requisite degree of

culpability for each element as to which a culpable mental state is specified by the section

defining the offense.”

{¶8} Mr. Westfall does not dispute that he struck Mr. Gunter’s face with his hand or

that he caused Mr. Gunter’s injuries. Instead, he claims that his action was involuntary and that

the prosecution failed to show that he acted “knowingly.” “A person acts knowingly, regardless

of his purpose, when he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B). “[W]hether a person acts knowingly can

only be determined, absent a defendant’s admission, from all the surrounding facts and

circumstances, including the doing of the act itself.” State v. Huff (2001),

. Further, “[i]f a given result is probable, a person will be held to have acted knowingly to

achieve it because one is charged by the law with knowledge of the reasonable and probable 4

consequences of his own acts.” (Internal quotations and citations omitted.) State v. Murphy, 9th

Dist. No. 24753,

, at ¶15.

{¶9} In the instant matter, both Mr. Gunter and Courtney Garza testified for the State.

Mr. Gunter testified that when he, Courtney and Felicia Garza and Kaitlyn Kurt arrived at the

basketball court, Mr. Westfall, Dalton and Brad Estep, and Ben Gillespie were already there

playing basketball. Mr. Gunter stated that he did not know any of the individuals well. When

Mr. Gunter saw that they were already on the court, he told Felicia Garza that he did not want to

go over towards them because of the money he owed, but Felicia told Mr. Gunter that the others

did not have a problem with Mr. Gunter. As Mr. Gunter started to walk over with his group, Mr.

Westfall and Dalton Estep stopped playing basketball. According to Mr. Gunter, Mr. Westfall

and Dalton Estep approached Mr. Gunter and proceeded to ask him about money that he owed

Mr. Gillespie for a bike he had bought from Mr. Gillespie. They asked Mr. Gunter when he was

going to pay the money and Mr. Gunter shrugged his shoulders and put his hands in his pockets.

Mr. Gunter testified that Mr. Westfall got in his face and tried to grab for Mr. Gunter’s pockets.

Thereafter, Mr. Gunter pushed Mr. Westfall back and then Mr. Westfall hit Mr. Gunter in the

jaw. As Mr. Gunter was walking towards the car to leave, according to Mr. Gunter, Mr. Westfall

told Mr. Gunter not to go to the police. Mr. Westfall apologized and stated that he “was mad[]

[Mr. Gunter] owed [Mr. Gillespie] money, [Mr. Gunter] wouldn’t give it to him, so [Mr.

Westfall] hit [Mr. Gunter].” Ultimately, because of the punch, Mr. Gunter suffered a broken

jaw, lost teeth and had to have his jaw wired shut for several weeks.

{¶10} Based solely upon Mr. Gunter’s testimony and when viewing it in a light most

favorable to the State, there was sufficient evidence from which a reasonable trier of fact could

conclude beyond a reasonable doubt that Mr. Westfall knowingly struck Mr. Gunter causing 5

serious physical harm. R.C. 2903.11(A)(1). Given the circumstances surrounding the incident

as reported by Mr. Gunter, the trier of fact could reasonably infer that Mr. Westfall was angry at

Mr. Gunter for failing to pay the money that he allegedly owed and that Mr. Westfall knowingly

hit Mr. Gunter which resulted in the injury that neither side disputes constitutes serious physical

harm under the statute. R.C. 2903.11(A)(1); see, also, Murphy at ¶15. Therefore, we overrule

Mr. Westfall’s first assignment of error.

ASSIGNMENT OF ERROR II

“THE VERDICT FINDING APPELLANT GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVED BEYOND A REASONABLE DOUBT.”

{¶11} Mr. Westfall argues in his second assignment of error that his conviction for

felonious assault is against the manifest weight of the evidence. Specifically, he attacks the

credibility of Mr. Gunter’s testimony and argues that the court erroneously failed to consider the

affirmative defense of self-defense. Essentially, Mr. Westfall argues that the conviction is

against the manifest weight of the evidence because the evidence supports the conclusion that he

accidentally hit Mr. Gunter while he was trying to defend himself from him, and, thus, his

actions were not done knowingly.

{¶12} In reviewing a challenge to the weight of the evidence, the appellate court

“‘[m]ust 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. Thomas, 9th Dist. Nos. 22990, 22991,

2006–Ohio–4241, at ¶7, quoting State v. Otten (1986),

. 6

{¶13} In reversing a conviction as being against the manifest weight of the evidence,

“the appellate court sits as the ‘thirteenth juror’ and disagrees with the factfinder's resolution of

the conflicting testimony.” Thomas at ¶8, citing Thompkins,

. Accordingly,

“this Court’s ‘discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.’” Thomas at ¶8,

quoting State v. Martin (1983),

.

{¶14} Mr. Westfall first asserts that Mr. Gunter’s testimony was not credible, and,

therefore, Mr. Westfall’s conviction is against the manifest weight of the evidence. While it is

true that Mr. Gunter’s testimony differs from that of other witnesses in several respects, that fact

alone does not necessitate the conclusion that Mr. Westfall’s conviction is against the manifest

weight of the evidence. All of the witnesses who saw the altercation testified that Mr. Westfall

struck Mr. Gunter. However, the testimony on how that happened differs depending on the

witness. Mr. Gunter was the only witness to report that Mr. Westfall hit him from behind, a fact

that Mr. Gunter did not report to the police. In addition, Mr. Gunter was the only witness to state

that Mr. Westfall tried to reach into Mr. Gunter’s pockets or that Mr. Gunter pushed Mr.

Westfall. Mr. Gunter admitted during his testimony that he told police that Dalton Estep also hit

him. Mr. Gunter further explained that at the time he believed two people struck him, but he

later came to understand that only one person hit him and that person was Mr. Westfall. Mr.

Gunter was also the only witness who denied that there was an additional confrontation

concerning rumors about Mr. Westfall’s girlfriend.

{¶15} Two witnesses, Felicia Garza and Bradley Estep denied seeing the actual punch.

Courtney Garza, Dalton Estep, and Mr. Westfall each testified that Mr. Westfall only struck Mr.

Gunter after Mr. Gunter “flinch[ed]” at Mr. Westfall. Mr. Westfall testified that he confronted 7

Mr. Gunter about rumors circulating about Mr. Westfall’s girlfriend and that Dalton Estep also

confronted Mr. Gunter about the money that was owed. Mr. Westfall stated that after he turned

back from looking at Dalton Estep, he looked at Mr. Gunter and thought Mr. Gunter was going

to hit him as he had his “hands up[,]” his fists were clenched, and he was “going to flinch at

me[.]” Mr. Westfall further testified that in response, “I just put my hands up to block it and I

contacted his face.” Mr. Westfall testified that his intention in putting his hands up was to “keep

[him]self from getting hit and blocking [him]self.” Mr. Westfall admitted that Mr. Gunter never

stepped towards him, nor did he swing at or contact Mr. Westfall. In addition, Mr. Westfall

acknowledged that he was aware of the damage one could cause by hitting someone in the face.

{¶16} After independently reviewing the evidence, we cannot conclude that the trial

court was unreasonable in its credibility determinations. See State v. Singer, 9th Dist. No.

25321,

, at ¶12. Even Mr. Westfall’s friends agreed that Mr. Westfall hit Mr.

Gunter. Thus, even assuming that the events did not occur in the manner in which Mr. Gunter

testified they did, Mr. Gunter’s testimony that he was struck by Mr. Westfall was certainly

corroborated by the other testimony, which the trier of fact could have reasonably viewed as

lending credibility to portions of Mr. Gunter’s testimony. Further, the trier of fact could have

reasonably questioned the credibility of several of the defense witnesses who were all close

friends of Mr. Westfall. Thus, we turn to Mr. Westfall’s argument that the trial court erroneously

failed to consider self-defense.

{¶17} We begin by noting that at one point in the trial while addressing an objection

related to a witness’s use of the phrase self-defense, the trial court specifically stated that “[t]he

Court will make a determination obviously of whether or not the defense of self-defense has

been established.” Thus, we disagree that the trial court entirely failed to consider the defense. 8

{¶18} In addition, we note that in closing argument, while defense counsel discussed

both accident and self-defense, defense counsel specifically stated that “I’m not going to argue

self-defense other than say this was an accident, [Mr. Westfall] had no intention of touching

him.” Thus, it appears that defense counsel abandoned the argument that Mr. Westfall acted in

self-defense and instead argued that any contact with Mr. Gunter was accidental. Notably, the

concepts of accident and self-defense are diametrically opposed. See e.g., State v. Perry, 9th

Dist. No. 25271,

, quoting State v. Howe (July 25, 2001), 9th Dist. No.

00CA007732, quoting State v. Barnd (1993),

(“‘While accident

“involves the denial of a culpable mental state and is tantamount to the defendant not committing

an unlawful act,” one claiming self-defense “concedes [that] he had the purpose to commit the

act, but asserts that he was justified in his actions.”’”).

{¶19} However, notwithstanding the foregoing, the trial court’s conclusion that Mr.

Westfall committed felonious assault, and, thus, its implicit conclusion that Mr. Westfall did not

act in self-defense was not against the manifest weight of the evidence. “Self-defense is an

affirmative defense, which a defendant must prove by a preponderance of the evidence.” State v.

Little, 9th Dist. No. 10CA009758,

, at ¶23.

“In general, to establish self-defense, including self-defense involving deadly force, the defendant must prove that: ‘(1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant has 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) the defendant must not have violated any duty to retreat or avoid the danger.’ State v. Tucker, 9th Dist. No. 06CA0035-M,

, citing State v. Robbins (1979),

, * * * paragraph two of the syllabus.

“However, if the defendant uses non-deadly force to defend himself[,] this Court has held that, ‘the defendant must prove: (1) he was not at fault in creating the situation which gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and reasonable grounds to believe that such conduct was necessary to defend himself against the imminent use of unlawful force; and 9

(3) the force used was not likely to cause death or great bodily harm.’ [State v.] Hatfield[, 9th Dist. No. 23716,

,] at ¶ 9, quoting State v. Tanner, 9th Dist. No. 3258-M,

, at ¶21.

“Thus, in general, ‘one may use such force as the circumstances require to protect oneself against such danger as one has good reason to apprehend.’ Akron v. Dokes (1986),

, 25 * * * ; see, also, State v. Williford (1990),

, 249 * * * . Here, it is unclear which standard the trial court utilized; however under the facts of this case, the result of our analysis would be the same applying either.” State v. Gates, 9th Dist. No. 24941,

, at ¶7.

{¶20} In the instant matter, it would not be unreasonable for the trier of fact to conclude

that Mr. Westfall’s response to Mr. Gunter’s “flinch[ing]” was disproportionate or that Mr.

Westfall was acting in a preemptive manner, as opposed to a responsive manner. Given what

little action Mr. Gunter took against Mr. Westfall and given the number of friends Mr. Westfall

had surrounding him, a reasonable trier of fact could reasonably conclude that Mr. Westfall did

not have an honest belief that his conduct was necessary to defend himself from unlawful force.

See

Thus, we cannot say that the trial court acted unreasonably in rejecting Mr. Westfall’s

self-defense argument.

{¶21} Accordingly, upon thorough review of the record, we do not conclude that “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.”

Otten,

. Mr. Westfall’s second assignment of error is overruled.

III.

{¶22} In light of the foregoing, the judgment of the Lorain County Court of Common

Pleas is affirmed.

Judgment affirmed. 10

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into 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 constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

WHITMORE, J. DICKINSON, J. CONCUR

APPEARANCES:

KREIG J. BRUSNAHAN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.