[Cite as State v. Williams,

.]

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, OPINION

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 Appellee Case No. 1-19-39

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Kent D. Williams (“Williams”), appeals the May

6, 2019 judgment entry of sentence of the Allen County Common Pleas Court. For

the reasons that follow, we affirm.

{¶2} This case stems from a June 17, 2017 altercation between Williams and

Lindsey McCoy (“McCoy”), nka Lindsey Kramer, and Tyler Dunlap (“Dunlap”) of

the Ohio Department of Rehabilitation and Correction that occurred 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 February 23, 2018,

Williams appeared for arraignment and entered pleas of not guilty. (Doc. No. 8).

{¶3} After a bench trial on May 6, 2019, the trial court found Williams 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 months in prison on each

count, respectively, and ordered the terms to be served consecutively, for an

aggregate sentence of 18 months in prison. (Doc. No. 162). The trial court also

ordered the prison terms to be served consecutive to a prison term 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.

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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 convictions

are based on insufficient evidence and that his convictions are against the manifest

weight of the evidence. In particular, Williams argues that the trial court lost its

way in evaluating the evidence to conclude that he acted in self-defense.

Standard of Review

{¶6} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,

(1997). Thus, we address each legal concept individually.

{¶7} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks,

(1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(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.”

“In deciding if the

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evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

,

citing State v. Williams,

,

(1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing

.

{¶8} On the other hand, in determining whether a conviction is against 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 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.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

(1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

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Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v.

Hunter,

,

.

Sufficiency of the Evidence

{¶9} We begin by addressing the sufficiency of the evidence supporting

Williams’s assault convictions. Williams does not dispute that the State proved the

elements of assault. Rather, he argues on appeal that his assault convictions are

unsupported by sufficient evidence because he presented sufficient evidence that he

acted in self-defense.

{¶10} Williams’s challenge to the sufficiency of the evidence as to self-

defense is inappropriate. See State v. Vasquez, 10th Dist. Franklin No. 13AP-366,

. Self-defense is an affirmative defense, and the accused bears

the burden of proving it by a preponderance of the evidence. State v. Belanger,

,

(3d Dist.), citing State v. Williford,

(1990). See also R.C. 2901.05(A). “The ‘due process ‘sufficient

evidence’ guarantee does not implicate affirmative defenses, because 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,

,

, ¶

37. Therefore, we need to address Williams’s self-defense arguments only in our

analysis of the manifest weight of the evidence.

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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 concluding 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 element by a

preponderance of the evidence.’”1 State v. Oates, 3d Dist. Hardin No. 6-12-19,

, quoting State v. Kimmell, 3d Dist. Wyandot No. 16-10-06,

, 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 seek to negate any

elements of the offense which the State is required to prove” but rather they “admit[]

the facts claimed by the prosecution and then rel[y] on independent facts or

circumstances which the defendant claims exempt him from liability.”’” Id. at ¶ 10,

1 Subsequent to the indictment in this case, R.C. 2901.05 was amended 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 defendant committed the offense. See State v. Koch, 2d Dist. Montgomery No. 28000,

(concluding that the defendant was “not entitled to retroactive application of the burden shifting changes 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 amended version of the statute, the result is the same.

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quoting State v. Smith, 3d Dist. Logan No. 8-12-05,

, quoting

State v. Martin,

(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,

, citing State v. Densmore, 3d Dist.

Henry No. 7-08-04,

.

{¶14} To establish self-defense through the use of non-deadly force, an

accused must prove: (1) the accused was not at fault in creating the situation giving

rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he

was in imminent danger of any bodily harm; and (3) the only means to protect

himself from such danger was the use of force not likely to cause death or great

bodily harm. Accord State v. Vu, 10th Dist. Franklin No. 09AP-606, 2010-Ohio-

4019, ¶ 10; State v. Juntunen, 10th Dist. Franklin No. 09AP-1108,

,

¶ 21; Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006). See In re

J.J., 5th Dist. Licking No. 16 CA 44,

, ¶ 14; State v. Koch, 2d Dist.

Montgomery No. 28000,

; State. v. Jeffers, 11th Dist. Lake

No. 2007-L-011,

. See also State v. Wagner, 3d Dist. Seneca

No. 13-15-18,

. “In instances where less than deadly force is

used, the defendant need only show a fear of bodily harm, not of death or great

bodily harm.” State v. Brown, 2d Dist. Montgomery No. 27312,

,

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¶ 24, citing State v. Gee, 2d Dist. Miami No. 87-CA-22,

, *2 (Nov.

17, 1987) and State v. Perez,

(10th Dist. 1991).

Both versions of self-defense, however, use the term “great bodily harm”: self-defense involving deadly force uses the term to describe the level of harm the defendant must perceive before he or she is justified in using deadly force, while self-defense with non-deadly 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,

, citing

. “‘[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,

, citing State v.

Ervin,

(8th Dist. 1991). “If a defendant fails to prove any

one of the elements of self-defense by a preponderance of the evidence, he has failed

to demonstrate that he acted in self-defense.” (Italics added.) State v. Kimmel, 3d

Dist. Wyandot No. 16-10-06,

, citing State v. Jackson,

(1986).

When the situation involves the use of force against law enforcement officers, a private citizen may not—in the absence of excessive or unnecessary force by an arresting officer—use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.

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State v. Fritz, 2d Dist. Montgomery No. 20796,

, citing State

v. Scimemi, 2d Dist. Clark No. 94-CA-58,

, ¶ 24 (June 2, 1995),

Columbus v. Fraley,

, (1975), paragraph three of syllabus, and

State v. Wenger,

(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,

, citing State v. Grace, 9th

Dist. Summit No. 16950,

, *15 (Oct. 11, 1995).

{¶15} At trial, McCoy identified State’s exhibit “1,” a video recording

depicting the altercation. (Id. at 9-10). McCoy testified that Williams was

segregated in a restrictive-housing unit receiving limited privileges for rule

infractions within the institution or awaiting transport to a higher security facility.

(May 6, 2019 Tr. at 8). According to McCoy, inmates in that unit receive two

mandatory one-hour recreation periods. (Id. at 10). She testified that Williams was

confrontational over a disagreement with her and Dunlap regarding the allotted-

recreational time—refusing to return to his cell after a recreational 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 left 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, “Well, if this is how

it’s going to be then I’m not locking down.” (Id.). Thereafter, according to McCoy,

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Williams and Dunlap exchanged punches. (Id. at 15). McCoy testified that she

attempted to alert the control center through her “man down” device; 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 Dunlap 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 because McCoy and

Dunlap ended the recreational period early. (Id. at 43-44). According to Hill,

Williams refused to comply with their order, “Dunlap grabbed him and spun him

2 Williams does not identify which correctional officers or how many correctional officers were involved in the altercation.

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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 exited 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 his cell. (Id. at 48-

49).

{¶19} We conclude that the trial court did not lose its way as to Williams’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, Dunlap was permitted to

use “less-than-deadly force” against Williams to control the situation. See Ohio

Adm.Code 5120-9-01(2)(a)-(d) (2004) (current version at Ohio Adm.Code 5120-9-

01(2)(a)-(d) (2019)). See also Shepard,

(concluding that

the heightened standard for non-deadly force self-defense applies 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 Williams was not

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privileged under the circumstances to resist the correctional officers’ orders.

Ultimately, McCoy and Dunlap’s use of less-than-deadly force was required in

order to return Williams to his cell.

{¶20} Upon our review, we conclude that the weight of the evidence supports

that Williams was at fault for creating the situation. Because the elements of self-

defense are cumulative and Williams cannot establish he was not at fault for creating

the situation, Williams failed to demonstrate that he acted self-defense. Kimmel,

, citing Jackson,

.

{¶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 convictions 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 the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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