[Cite as State v. Mays,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29051 : v. : Trial Court Case No. 2020-CRB-2063 : ROYCE L. MAYS : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

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OPINION

Rendered on the 14th day of October, 2022.

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STEPHANIE L. COOK, Atty. Reg. No. 0067101 and AMY B. MUSTO, Atty. Reg. No. 0071514, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

DAWN S. GARRETT, Atty. Reg. No. 0055565, 70 Birch Alley, Suite 240-24005, Beavercreek, Ohio 45440 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Royce L. Mays, appeals from his misdemeanor assault

conviction following a bench trial in the Dayton Municipal Court. In support of his appeal,

Mays asserts that his conviction was not supported by sufficient evidence and was

against the manifest weight of the evidence. Specifically, Mays asserts that the evidence

presented at trial established that he was acting in self-defense during the assault in

question and that the State failed to present sufficient evidence to satisfy its burden under

R.C. 2901.05(B)(1) to prove beyond a reasonable doubt that he was not acting in self-

defense. Mays also asserts that the weight of the evidence supported his self-defense

claim and that the trial court erred by failing to grant his Crim.R. 29 motion for an acquittal

of the assault charge. Because the State presented video evidence at trial showing that

Mays was not acting in self-defense at the time he assaulted the victim, the judgment of

conviction will be affirmed.

Facts and Course of Proceedings

{¶ 2} On July 1, 2020, Mays was charged with assault in violation of R.C.

2903.13(A), a misdemeanor of the first degree. The charge arose from allegations that

Mays assaulted a patron at the House of Bread in Dayton, Ohio, while Mays was there

providing security services. Mays pled not guilty to the charge, and the matter

proceeded to a bench trial.

{¶ 3} During trial, the State presented testimony from two witnesses: the executive

director of the House of Bread and a bystander who witnessed the alleged assault. The -3-

State also presented video evidence taken from the House of Bread’s security camera.

The defense presented testimony from one of Mays’s co-workers who was working at the

House of Bread during the incident in question. Mays himself also testified at trial.

{¶ 4} The testimony and evidence presented at trial established that Mays worked

for a company that had contracted to provide security services for the House of Bread.

The House of Bread is a non-profit community organization that provides meals to anyone

in need. There is no dispute that on June 20, 2020, Mays was providing security services

at the House of Bread when a regular patron named Kenya Turner attempted to enter the

building while pushing a baby stroller that contained her personal items. There is also

no dispute that Mays would not let Turner enter the building with the stroller.

{¶ 5} Mays testified that when he encountered Turner, it was his first day back

working at the House of Bread since the COVID-19 pandemic began. Because of this,

Mays testified that he was unsure whether Turner was permitted to bring her stroller into

the building, as new restrictions were in place. Mays testified that he stopped Turner

from entering the House of Bread and told her to “hold on” so that he could ask his co-

worker if Turner could bring her stroller inside. Trial Tr. (Nov. 4, 2020), p. 88.

{¶ 6} Mays testified that as he was asking his co-worker about Tuner’s stroller,

Turner tried to force her way into the building by pushing her stroller into his leg. Mays

also testified that Turner was yelling obscenities at him and was being violent and

disorderly. Mays claimed that as a result of Turner’s conduct, he decided not to allow

Turner inside the House of Bread, and Turner hit him when he tried to eject her from the

building. Mays testified that he thereafter hit Turner in self-defense because Turner -4-

continued to be aggressive and because he had “to get her off [him].” Trial Tr. at 92.

Mays’s co-worker, Joelikia Dumas, similarly testified that Turner was holding onto Mays

after they stumbled down the steps and that Mays hit Turner in an effort to get Turner off

of him.

{¶ 7} A security camera from the House of Bread captured the incident on video,

and the video footage was admitted into evidence as State’s Exhibit 1. Due to the

position of the security camera, the video footage only depicts what happened just outside

the House of Bread’s entrance. Therefore, on the video, Turner can be seen attempting

to get her stroller inside the House of Bread and pushing the stroller toward the entrance

with force. Mays is not shown on the video until he steps outside to eject Turner from

the building.

{¶ 8} While ejecting Turner, Mays, who was much larger than Turner, could be

seen on the video taking a hold of Turner’s stroller. After Mays took hold of the stroller,

the video showed Turner slapping Mays on the top of his head with her hand. Thereafter,

Mays moved his body forward toward Turner, which caused both Mays and Turner to lose

their balance and stumble down a short set of steps located in front of the building. The

video showed that Mays held Turner’s arm as they were stumbling down the steps. As

Mays and Turner regained their footing, Turner could be seen moving her body away

from Mays, but Mays kept a hold of Turner’s arm, grabbed Turner’s head with both of his

hands, and then forcefully hit Turner across the face with his right hand.

{¶ 9} After Mays hit Turner in the face, the video showed Mays picking up a jelly

jar that had fallen out of Turner’s overturned stroller and throwing the jelly jar on the -5-

ground near Turner. It was unclear from the video whether Mays was attempting to hit

Turner with the jar. Mays testified that he threw the jar out of anger because Turner had

spit at him. Both Mays and Dumas testified that Mays threw the jar at the ground and

that Mays had not been aiming it at Turner. The bystander who testified for the State,

Shaun Sullivan, testified that it appeared as though Mays was trying to hit Turner with the

jar.

{¶ 10} The video of the incident was played several times during trial. After the

State rested its case, Mays moved for a Crim.R. 29 acquittal on the assault charge. In

support of the motion, Mays argued that the video evidence established that Turner had

been violent with Mays and that Mays had hit Turner in self-defense during their physical

altercation. Mays also argued that an acquittal was proper because the State had failed

to meet its burden to present evidence establishing beyond a reasonable doubt that he

had not acted in self-defense during the altercation. The trial court, however, disagreed

with Mays and found that the State had satisfied its burden of proof. Accordingly, the

trial court overruled Mays’s Crim.R. 29 motion.

{¶ 11} At the end of trial, the trial court rejected Mays’s claim of self-defense and

found him guilty of assault. The trial court sentenced Mays to 180 days in jail, all of which

were suspended, and to one year of basic probation. The trial court also ordered Mays

to pay a $200 fine and court costs.

{¶ 12} Mays appeals from his conviction, raising two assignments of error for

review. Because Mays’s assignments of error are interrelated, we will address them

together. -6-

First and Second Assignments of Error

{¶ 13} Under his first assignment of error, Mays raises sufficiency and manifest

weight arguments that pertain to his claim of self-defense. Specifically, Mays contends

that the evidence presented at trial established that he was acting in self-defense when

he assaulted Turner and that the State failed to present sufficient evidence to satisfy its

burden under R.C. 2901.05(B)(1) to show that he was not acting in self-defense. Mays

also contends that the trial court’s rejection of his self-defense claim was against the

manifest weight of the evidence.

{¶ 14} Under his second assignment of error, Mays contends that the trial court

erred by overruling his Crim.R. 29 motion for an acquittal. Because a Crim.R. 29 motion

tests the sufficiency of the evidence presented at trial, rulings on Crim.R. 29 motions are

reviewed under the same standards that apply to a review for sufficiency of the evidence.

State v. Baker, 2d Dist. Greene No. 2009-CA-62,

, ¶ 16; State v.

Crabtree, 2d Dist. Champaign No. 2019-CA-1,

, citing State v.

Williams,

,

(1996). Therefore, Mays’s second

assignment of error also challenges the sufficiency of the evidence as it relates to his self-

defense claim.

{¶ 15} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

, 678 -7-

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis,

,

(1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.)

{¶ 16} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction was against the manifest weight of the evidence, the appellate court

must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, 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).

{¶ 17} As previously discussed, Mays was convicted of first-degree-misdemeanor

assault in violation of R.C. 2903.13(A). That statute prohibits any person from

“knowingly caus[ing] or attempt[ing] to cause physical harm to another or to another’s

unborn.” R.C. 2903.13(A). “Physical harm” means any injury, illness, or other

physiological impairment, regardless of its gravity or duration. R.C. 2901.01(A)(3).

{¶ 18} During his testimony, Mays admitted to physically assaulting Turner on the -8-

day in question by grabbing her head and hitting her, but he claimed that he engaged in

such conduct while acting in self-defense. “It is well established that ‘[t]he defense of

self-defense may exonerate an accused’s admitted use of force.’ ” State v. Shropshire,

2d Dist. Montgomery No. 29108,

, quoting State v. Parrish, 1st Dist.

Hamilton No. C-190379,

. R.C. 2901.05(B)(1) specifically provides

that “[a] person is allowed to act in self-defense” and that if there is evidence presented

at trial “that tends to support that the accused person used the force in self-defense, * * *

the prosecution must prove beyond a reasonable doubt that the accused person did not

use force in self-defense[.]” R.C. 2901.05(B)(1).

{¶ 19} “To establish self-defense, a defendant must introduce evidence showing

that: (1) he was not at fault in creating the violent situation; (2) he had a bona fide belief

that he was in imminent danger of bodily harm; and (3) he did not violate any duty to

retreat or avoid the danger.” State v. Brown,

,

(2d

Dist.), citing State v. Thomas,

,

(1997). “It is

well established that a person cannot provoke a fight or voluntarily enter combat and then

claim self-defense.” (Citations omitted.) State v. James, 2d Dist. Montgomery No.

28892,

. “Moreover, a defendant must have a bona fide belief that

the use of force was the only means of escape.” State v. Lovett, 2d Dist. Montgomery

No. 29240,

, citing James at ¶ 21. “Part of this entails a showing

that the defendant used ‘only that force that [was] reasonably necessary to repel the

attack.’ ” State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-19,

,

quoting State v. Bundy,

,

, ¶ 55 (4th Dist.). “If the force -9-

used was so disproportionate that it shows a purpose to injure, self-defense is

unavailable.” (Citation omitted.) Lovett at ¶ 42.

{¶ 20} In this case, Mays argues that he was acting in self-defense when he hit

Turner because Turner had hit him first and because he was trying to get Turner off of

him during their physical altercation. The video evidence, however, clearly showed that

Mays went on the offensive after he stumbled down the stairs with Turner. The video

showed that as Mays and Turner were stumbling down the stairs, Mays had a hold of

Turner’s arm and continued to hold on to Turner as they regained their footing at the

bottom of the steps. The video also showed that Turner, who was much smaller than

Mays, briefly attempted to move her body away from Mays, but that Mays kept a hold of

Turner’s arm, grabbed Turner’s head with both of his hands, and forcefully hit Turner

across the face.

{¶ 21} At the time Mays hit Turner, Turner was not posing a threat of harm to Mays

that warranted Mays’s hitting Turner in the manner he did. Indeed, Mays was the one

who kept a hold of Turner’s arm, and nothing prevented him from letting Turner go after

they stumbled down the steps. Therefore, the video did not support a finding that hitting

Turner in the face was reasonably necessary for Mays to protect himself or to escape

from the violent situation. Instead, the video established that Mays went on the offensive

and prolonged the violent situation by assaulting Turner.

{¶ 22} Because the video evidence clearly established that Mays went on the

offensive when he hit Turner, the video was more than sufficient to prove beyond a

reasonable doubt that Mays was not acting in self-defense when he assaulted Turner. -10-

Given that the video evidence was sufficient in that regard, the trial court did not err by

overruling Mays’s Crim.R. 29 motion. In light of this, we also find that the video evidence

was sufficient to convict Mays of assault and that said conviction was not against the

manifest weight of the evidence, as the video evidence undoubtedly belied Mays’s claim

of self-defense.

{¶ 23} For all the foregoing reasons, Mays’s first and second assignments of error

are overruled.

Conclusion

{¶ 24} The judgment of the trial court is affirmed.

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DONOVAN, J. and EPLEY, J., concur.

Copies sent to:

Stephanie L. Cook Amy B. Musto Dawn S. Garrett Hon. Mia Wortham Spells Hon. Edward Utacht, Visiting Judge